NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RAYMOND D. CHEELY, JR., )
) Court of Appeals No. A-4107
Appellant, ) Trial Court No. 3AN-90-3884
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1291 - April 23, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: John E. McConnaughy, III, and
Larry Cohn, Anchorage, for Appellant. Eric
A. Johnson, 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.
Raymond D. Cheely was found guilty of second-degree
theft, AS 11.46.130(a), following a jury trial in the Anchorage
superior court. Cheely appeals his conviction, contending that
the evidence against him should have been suppressed, and also
that the trial court misinstructed the jury. We affirm.
An Anchorage grand jury indicted Cheely for stealing a
black 1990 Chevrolet S-15 pickup truck from Alaska Sales and
Service, an Anchorage car dealer. The theft was discovered after
Anchorage police were called to Chugiak High School to
investigate a pickup truck found parked in the school's faculty
parking lot. School officials were concerned because the pickup
had two shotguns in the rack in the cab, and the truck did not
belong to any member of the faculty. Because no one else had
permission to park a vehicle in the faculty lot, school officials
called upon the police to find out who owned the truck.
The police checked the license plate number on the
truck and found that the vehicle was apparently registered to
Cheely. However, the registration records contained a vehicle
identification number (VIN) that was different from the
VIN visible on the truck's dashboard. When the police spoke with
Cheely, he affirmed that he was the owner of the truck. The
police asked Cheely about the discrepancy between the vehicle
identification numbers. Cheely told the officers that the
license plates had actually belonged to another Chevy pickup, a
1988 S-10, that had been destroyed in a fire. Cheely said that,
after his first truck was destroyed, he had built a new truck
from assorted parts of other trucks, then had placed the license
plates from the destroyed truck on his newly assembled vehicle.
The police took the truck from Cheely and later scruti
nized its structure. The officers ascertained that, despite
Cheely's claim that the vehicle had been assembled from parts of
several other trucks, the vehicle identification numbers stamped
on the engine, the transmission, and the frame all matched the
VIN displayed on the dashboard. Because this recurring VIN did
not match the VIN listed in the registration records, the
officers investigated further and discovered that the truck was
in fact a 1990 Chevy S-15 that had been stolen from Alaska Sales
and Service.
Cheely's attorney filed a motion to suppress all
evidence the police obtained from their detailed examination of
the truck. Cheely asserted that the police's warrantless seizure
of the truck had been illegal. The State responded that Cheely
had given the officers permission to take his truck and search
it.
The superior court held an evidentiary hearing on
Cheely's suppression motion. The only witness was Anchorage
Police Officer Leslie Withers. Officer Withers testified that he
and another officer, Dennis Long, had gone to Chugiak High School
to investigate the truck. The two officers spoke with Cheely in
a school conference room. Cheely affirmed that he was the owner
of the truck. The officers asked Cheely about the variance
between the truck's VIN and the VIN on record under Cheely's
license plate number, and Cheely gave his explanation (that the
original truck had been destroyed and that he had assembled the
present truck from assorted parts of other vehicles). Cheely
then gave the officers permission to search his truck.
Withers produced the "search waiver" form that Cheely
had signed in his and Officer Long's presence. Withers testified
that this form "advises that Mr. Cheely is giving myself, Officer
Long, and the Anchorage Police Department permission to search
his 1988 Chevy truck ... and it authorizes me to take from the
[truck] any letters, papers, materials, or other property which I
desire." Withers further testified that Cheely had not been
under arrest when he signed the form, that Cheely had not
expressed any reluctance to have the police search the truck, and
that Cheely had not been threatened in any way or promised
anything to induce him to consent to the search. Additionally,
from the time Cheely signed the consent form until the police
towed his truck away, Cheely never indicated that he had changed
his mind about consenting to the search.
On cross-examination, Cheely's attorney focused on the
fact that the written consent-to-search form, while it explicitly
authorized the police to search the truck and its contents, did
not specifically authorize the police to impound the vehicle (tow
it away). Cheely's attorney attempted to demonstrate that Cheely
had never consented to the seizure (as opposed to the search) of
the truck. However, Officer Withers disagreed:
DEFENSE ATTORNEY: And did [Cheely] give
you permission to seize the truck, as opposed
to ... [seizing] papers and things of that
nature? Basically, he never said, "Go ahead
and take the truck". You just took the
truck?
WITHERS: No, that's not correct.
DEFENSE ATTORNEY: So when did he say,
"Go ahead and take the truck"?
WITHERS: Mr. -- as a matter of fact,
Mr. Cheely was told while we were still
inside the [school] building, when we were
simply sitting down, speaking, Mr. Cheely was
told that, because of the conditions present
there [at the school], that it might not be
possible to do [the] complete inspection of
the vehicle which might be necessary. ...
Mr. Cheely had been told before we exited out
into the parking lot, where we were
discussing this, that we might not be able to
do a full inspection there and we'd need to
take it into the station or into the police
department to examine it. And he signed the
waiver and indicated that he was not
objecting to that.
After pointing out again that the wording of the
consent-to-search form did not seem to encompass seizure of the
truck, Cheely's attorney announced to the court, "I don't have
anything further, Your Honor. I'm willing just to rely without
argument on the testimony." Even after the prosecutor presented
a short argument opposing suppression, Cheely's attorney
reiterated, "I have no argument."
Superior Court Judge Milton M. Souter declared that he
believed the State had met its burden of proving that Cheely had
consented to the seizure and search of the truck. Judge Souter
agreed with Cheely that the wording of the consent-to-search form
did not explicitly authorize the police to seize the truck and
tow it away, but Judge Souter found that Cheely had verbally
consented to the seizure. Judge Souter further found that
Cheely's consent had been uncoerced and had been otherwise valid.
Based on these conclusions, Judge Souter denied Cheely's
suppression motion.
On appeal, Cheely does not question the superior
court's finding that he verbally consented to the impoundment of
his truck. Instead, Cheely asserts that his verbal consent was
obtained through "bait and switch" tactics - the police first
obtaining his consent to a search of the vehicle, then telling
him that it was necessary to tow the truck away in order to
accomplish this search. Cheely argues that the evidence
presented at the hearing was inadequate to establish that the
police explained the true scope of the consented-to search.
Cheely suggests that, after he signed the consent form, he may
not have understood that he still retained the right to insist
that the truck remain on-site.
None of these claims was advanced in the superior
court. Cheely's written motion to suppress simply asserted that
a warrantless search and seizure had occurred, and that it was
the State's burden to justify its actions. The State responded
that Cheely had consented to the search and seizure. In support
of this argument, the State presented the testimony of Officer
Withers. Withers testified that he and his fellow officer told
Cheely that they not only wished to search the truck but also
wished to remove the truck to another location to perform this
search. Withers also testified that Cheely freely consented to
this, and that Cheely never indicated he wished to reconsider or
revoke that consent. See Phillips v State, 625 P.2d 616, 618
(Alaska 1980), where the supreme court held that a defendant's
failure to object to a police search arguably broader than the
one the defendant initially agreed to can reasonably be
interpreted as continuing consent. Following this testimony,
Cheely's attorney explicitly told Judge Souter that he had
nothing further to say, and that he was willing "to rely without
argument on the [officer's] testimony".
Thus, Cheely's claims are not preserved, and we will
not consider them. Burford v. State, 515 P.2d 382, 383 (Alaska
1973); Lumbermen's Mutual Casualty Co. v. Continental Casualty
Co., 387 P.2d 104, 109, 111-12 (Alaska 1963). Moreover, even if
we were to entertain Cheely's claims, the record contains no
evidence to support Cheely's suggestions that his consent to the
impoundment was something less than knowing and voluntary. His
arguments in support of this claim are based on complete specula
tion. We affirm the superior court's denial of Cheely's suppres
sion motion.
Cheely's second claim on appeal concerns the trial
judge's answers to questions posed by the jury during delibera
tions. The State's theory at trial was that Cheely had stolen
the pickup truck from the Alaska Sales and Service lot. In his
short opening statement, Cheely's attorney told the jury that, in
the main, the defense was not going to dispute the testimony of
the State's witnesses; instead, the defense was going to argue
that the State had failed to prove beyond a reasonable doubt that
Cheely had stolen the pickup. In closing argument, the defense
theory of the case became more explicit: Cheely conceded that
the State might have proved that he had purchased or taken
possession of the pickup knowing it was stolen, but Cheely argued
that the State had not proved beyond a reasonable doubt that
Cheely himself had physically removed the truck from the dealer's
lot.
DEFENSE ATTORNEY: So what is the other
reasonable alternative? The other reasonable
alternative is that someone else stole the
truck and Ray Cheely ended up with it, and
that's not what he's charged with in this
case. He's not charged with receiving the
stolen truck. He's not charged with buying a
stolen truck. He's not charged with driving
a stolen truck. He's charged with stealing
the truck, and he didn't steal the truck.
. . .
[T]here's no question [that the defen
dant "obtained the property of another"].
Ray Cheely had the property of another -- he
had the truck. Did he actually go to the lot
and obtain it? No. Did he obtain it through
buying it from somebody? Possibly. Did he
get it from someone? Possibly. We don't
know how Ray Cheely got that truck. But, you
know, it's equally [likely] that he bought
the truck from someone who had stolen it.
. . .
I'm arguing reasonable alternatives. ...
[One] reasonable alternative is [that]
someone else [stole] that car and Ray Cheely
ended up with it, and he didn't even know it
was stolen. The only thing he knew is he got
a real cheap car. And maybe he had a gut
feeling it was stolen, but that still doesn't
make him the person who stole it from this
dealership. On that, you have to find him
not guilty.
The prosecutor responded to this argument by reiterating the
reasons to believe that Cheely himself had been the person who
removed the truck from the lot.
During its deliberations, the jury asked the court if
Cheely's argument was really a defense to theft. The jurors sent
the court a note which asked if they were required to find that
Cheely had personally taken the truck from the dealer's lot, or
if they had to find merely that someone had taken the truck and
that Cheely had then obtained it with intent to permanently
deprive the owner.
Instruction 16 of the court's original jury instruc
tions informed the jury that:
A person commits the crime of theft in
the second degree if, with intent to deprive
another of property or appropriate property
of another to himself or a third person, he
or she obtains the property of another and
the value of the property is $500 or more.
In order to establish the crime of theft
in the second degree, it is necessary for the
state to prove beyond a reasonable doubt the
following:
First, that the event in question oc
curred at or near Anchorage and on or about
January 27, 1990;
Second, that Raymond D. Cheely, Jr.,
intended to deprive another of property or
appropriate property of another to himself or
a third person;
Third, that the defendant obtained the
property of another; and
Fourth, that the value of the property
was $500 or more.
The jurors' question to the court read:
[In Instruction 16], does "event" mean [that]
a theft occurred, or [does it mean that] RDC,
Jr., stole a truck ... ? Which way should
this be interpreted[?] [D]oes [Instruction
16] mean "physically stealing [the] car off
[the] lot", or what? ... Are we being asked
if Raymond Cheely Jr. stole the truck off the
lot?
Judge Souter told the parties that he proposed to answer the
jurors' question this way:
In order for you to find the defendant
guilty as charged in the indictment, it is
not necessary that the evidence prove that he
was the person who removed the vehicle from
the Alaska Sales and Service lot, but it is
necessary that the evidence prove that he
obtained or appropriated the vehicle with
culpable intent on or about January 27, 1990,
as the terms "obtain" and "appropriate" are
defined in Instructions Number 20 and 21.
Despite the fact that Cheely's defense was apparently premised on
the distinction between theft by asportation and theft by receiv
ing, neither of Cheely's attorneys objected to the court's
proposal, and the court instructed the jury as indicated.
Later, the jury asked the court to clarify the culpable
mental state required for the crime of theft if Cheely had not
been the one who actually took the truck. At this point,
Cheely's attorneys argued for the first time that it would be
fundamentally unfair to allow the jury to convict Cheely on a
theft-by-receiving theory. Judge Souter nevertheless gave the
jury a further instruction on theft by receiving. When the jury
convicted Cheely, the verdict form they returned to court stated
that they had found Cheely guilty of "theft", without specifying
the theory.
On appeal, Cheely renews his assertion that the trial
court should not have allowed the jury to consider a theft-by-
receiving theory. To analyze Cheely's arguments, it is necessary
to examine the definition of theft contained in AS 11.46.100(a):
Sec. 11.46.100. Theft defined. A
person commits theft if
(1) with intent to deprive another of
property or to appropriate property of
another to oneself or a third person, the
person obtains the property of another;
(2) the person commits theft of lost or
mislaid property under AS 11.46.160;
(3) the person commits theft by
deception under AS 11.46.180;
(4) the person commits theft by
receiving under AS 11.46.190;
(5) the person commits theft of services
under AS 11.46.200;
(6) the person commits theft by failure
to make required disposition of funds
received or held under AS 11.46.210.
Cheely first argues that, because his indictment lists
the charging statute as "AS 11.46.100(a)(1)", there would be a
material variance between the crime charged in the indictment and
the crime for which Cheely was convicted if the jury found Cheely
guilty of theft by receiving, which is listed in AS 11.46.100
(a)(4). Judge Souter ruled, however, that subsection (a)(1)
defines the crime of theft generally and is broad enough to
include the specific instances of theft mentioned in subsections
(a)(2)-(6). Thus, Judge Souter concluded, a charge of theft
under AS 11.46.100(a)(1) encompasses both theft by asportation
and theft by receiving. Judge Souter correctly interpreted the
statute.
When the Alaska Criminal Code Revision Subcommission
drafted our current Title 11, one of the Subcommission's stated
goals was to consolidate the various pre-existing categories of
theft crimes into one, all-embracing theft offense:
Existing [i.e., pre-1980] Alaska law ...
retains the ancient distinctions between
larceny, embezzlement[,] and obtaining money
by false pretenses although these
distinctions serve no practical purpose. ...
The effect of these [purposeless distinc
tions] on existing law is highlighted by
Professors Wayne LaFave and Austin Scott:
We have seen that English legal history
explains the fact that, in most American
jurisdictions today, the wrongful appro
priation of another's property is
covered by three related but separate,
non-overlapping crimes -- larceny,
embezzlement, and false pretenses. This
fact, together with the fact that the
borderlines between the three crimes are
thin and often difficult to draw, has
given rise to a favorite indoor sport
played for high stakes in our appellate
courts: A defendant, convicted of one
of the three crimes, claims on appeal
that, though he is guilty of a crime,
his crime is one of the other two.
Sometimes this pleasant game is carried
to extremes: A defendant, charged with
larceny, is acquitted by the trial court
(generally on the defendant's motion for
a directed verdict of acquittal) on the
ground that the evidence shows him
guilty of embezzlement. Subsequently
tried for embezzlement, he is convicted;
but he appeals on the ground that the
evidence proves larceny rather than
embezzlement. The appellate court
agrees and reverses the conviction.
[Footnote omitted].
LaFave and Scott, Criminal Law, 673 (1972).
Today [i.e., in 1978], 42 states have
either adopted or are considering revised
criminal codes. Virtually all of these revi
sions have repudiated the unnecessary and
outdated distinctions among the most common
theft offenses. The Theft and Related Offens
es Article of [our] Revised Code accomplishes
this result in Alaska.
. . .
The primary purpose of the Theft Offense
Article of the Revised Code is the consolida
tion of a number of crimes that have tradi
tionally been thought of as theft offenses.
The traditionally distinct crimes of larceny,
larceny by trick, embezzlement, theft of
mislaid property, obtaining property by false
pretenses[,] and receiving stolen property
are now combined into a single crime of
"theft".
Alaska Criminal Code Revision, Tentative Draft (1978), Part 3,
pp. 16-18.
As Judge Souter correctly perceived, AS 11.46.100 was
drafted so that subsection (a)(1) constitutes the general defini
tion of theft, with subsections (a)(2)-(6) being merely varying
ways in which the basic crime defined in (a)(1) can be committed.
The Tentative Draft is explicit on this point:
Subsection (1), referring to a person
who "takes, appropriates, obtains[,] or
withholds the property of another" with the
requisite intent is broad enough to cover all
forms of thievish conduct. See State v. Jim,
508 P.2d 462 (Or. App. 1973), interpreting
the identical language in the Oregon
consolidated theft statute. However, as a
concession to the potential hold of
tradition, subsections (2)-(4) specifically
list conduct traditionally not included
within the definition of common law larceny.
Subsections (2)-(4) refer the reader to
specific statutes describing in detail how
theft of lost property, theft by deception[,]
and theft by receiving may be committed. It
is important to note that the conduct
described in these specific statutes do not
create separate crimes. [For example, there]
is no separate offense of theft by deception
in the Revised Code.
Tentative Draft, Part 3, p. 19 (emphasis added). See also the
legislative commentary to AS 11.46.100: 1978 Senate Journal,
Supplement No. 47 (June 12), pp. 30-32.
The drafters also rejected the particular argument
Cheely raised at his trial - that theft by asportation was an
offense distinct from theft by receiving:
The definition of "obtain" ... extends
the concept of taking to include constructive
acquisition of property ... . [A]sportation
or "carrying away" of property is not an
element of theft under the consolidated theft
statute[.]
Tentative Draft, Part 3, p. 20, and legislative commentary, 1978
Senate Journal, Supp. No. 47, p. 31.
To further accomplish the goal of consolidating theft
offenses, the drafters proposed and the legislature enacted
AS 11.46.110. That statute reads, in pertinent part:
Sec. 11.46.110. Consolidation of theft
offenses: Pleading and proof.
. . .
(b) An accusation of theft is sufficient
if it alleges that the defendant committed
theft of property or services of the nature
or value required for the commission of the
crime charged without designating the
particular way or manner in which the theft
was committed.
(c) Proof that the defendant engaged in
conduct constituting theft as defined in
AS 11.46.100 is sufficient to support a con
viction based upon any indictment, informa
tion, or complaint for theft.
The Criminal Code Revision Subcommission explained the need for
AS 11.46.110:
Under the Revised Code, a charge of theft is
sufficient without designating the particular
means by which the property was obtained. ...
The necessity for this section was acknowl
edged by the primary drafter of the Oregon
Revised Criminal Code.
[D]espite the substantial consolidation
of theft offenses, the tendency to cling
to the old categories is so strong that
it is considered advisable to state ex
pressly what logically follows [from the
legal consolidation]. ... [T]he state
will not be required in most cases to
designate the particular way or manner
in which the crime was committed. A
general allegation that the defendant
committed theft of property of the
nature or value required ... will be
supportable by proof that he engaged in
conduct constituting theft as defined by
the Revised Code. The proof might be
that the defendant engaged in conduct
amounting to common law larceny,
"embezzlement", "theft by receiving", or
some other type of thievish conduct.
Tentative Draft, Part 3, pp. 22-23, quoting Paillette, "The
Oregon Theft Laws: Consolidation v. Conglomeration", 51 Ore. L.
Rev. 525 (1972).
The legislative intent underlying AS 11.46.100 and
AS 11.46.110 was explicitly recognized and adopted by this court
in Williams v. State, 648 P.2d 603 (Alaska App. 1982). The
defendant in that case was convicted of the theft of equipment
that had disappeared from the yard of a Fairbanks construction
company. The indictment charged that Williams "did unlawfully
commit the theft" of the equipment, a "violation of
AS 11.46.130(a)". Williams, 648 P.2d at 605 n.3. On appeal,
Williams asserted that this indictment had not given him proper
notice of the offense with which he was charged because it did
not allege a specific theory of theft:
Williams claims that the evidence presented
at the grand jury showed that the state's
theory was that Williams had personally
stolen the [equipment] and that this is the
charge ... he was prepared to defend.
However, at the close of the evidence at
trial the state offered jury instructions on
the charge of theft by receiving[,] and the
judge instructed only on this theory of
theft.
Williams, 648 P.2d at 605-06. Williams asserted that he had been
denied due process, but this court rejected Williams's argument:
We believe that the indictment
adequately informed Williams of the offense
with which he was charged and [we] therefore
find no due process violation. ... AS
11.46.110(b) provides that:
(b) an accusation of theft is
sufficient if it alleges that the
defendant committed theft of proper
ty or services of the nature or
value required for the commission
of the crime charged without
designating the particular way or
manner in which the theft was
committed.
... [Under] this statutory scheme[,] a
person charged with theft is put on notice
that he may be convicted of theft under
different theories.
The accused is not without remedies in
finding out more specifically the crime with
which he is charged. He has access to the
record of the grand jury proceeding ... . An
accused can also ask for a bill of
particulars ... . Liberal discovery of the
state's case is also permitted ... . Given
these liberal discovery rules, we conclude
that an accused does have the ability to
obtain adequate discovery of the state's case
and to get adequate notice of the state's
theory or theories of prosecution. We
therefore find no merit to Williams' attack
on the indictment.
Williams, 648 P.2d at 606.
Several other jurisdictions with similar consolidated
theft statutes have seen appeals in which a defendant, indicted
for theft under the general definition, objected when the jury
was instructed on theft by receiving. These courts, recognizing
that a general charge of theft encompasses all the various forms
of theft, have upheld the defendants' convictions. State v.
Winter, 706 P.2d 1228, 1230-33 (Ariz. App. 1985); Commonwealth v.
Day, 599 S.W.2d 166 (Ky. 1980); State v. Taylor, 570 P.2d 697
(Utah 1977); State v. Jim, 508 P.2d 462 (Ore. App. 1973); State
v. Donnelly, 2 A.2d 214 (Conn. 1938). See also Cameron v. Hauck,
383 F.2d 966 (5th Cir. 1967), cert. denied, 389 U.S. 1039 (1968)
(federal habeas corpus litigation: conviction affirmed against
the defendant's challenge that he had not adequately been
apprised of the charge against him when evidence showed theft by
false pretenses rather than by trespassory taking), and People v.
Martinez, 543 P.2d 1290 (Colo. App. 1975) (subject-matter
jurisdiction over the crime upheld when the evidence showed that
the defendant, even though he had unlawfully taken the property
in another state, had unlawfully withheld the property while in
Colorado).
We therefore reject Cheely's argument that, because his
indictment charges theft under AS 11.46.100(a)(1), it was
improper to instruct the jury on theft by receiving. Theft by
receiving is not a separate crime; it is but one of the methods
by which theft can be committed. Under AS 11.46.110(b) and this
court's decision in Williams, Cheely was on notice that he might
be convicted of theft by receiving even if he could show that he
did not personally take the truck from the Alaska Sales and
Service lot. The evidence supported the inference that Cheely
had received the truck with knowledge that it was stolen, or with
reckless indifference to whether it was stolen, and with intent
to appropriate the truck to his own use. Ace v. State, 672 P.2d
159, 161-62 (Alaska App. 1983). Thus, an instruction on theft by
receiving was presumptively proper.
Cheely, however, argues that he was prejudiced by the
peculiar manner in which his case was litigated. As described
above, Cheely's defense was that, while he might have committed
theft by receiving, he was not the person who actually took the
truck off the dealership lot. Cheely asserts that he formulated
this defense in reliance on the wording of the indictment:
The grand jury charges that on or about
the 27th day of January, 1990, at or near
Anchorage, ... Raymond D. Cheely, Jr., did
unlawfully commit theft of a black 1990 GMC
S-15 pickup truck, ... the property of Alaska
Sales and Service, having a value of $500 or
more.
All of which is ... contrary to and in
violation of AS 11.46.130(a)(1) and against
the peace and dignity of the State of Alaska.
The statute mentioned in this indictment, AS 11.46.130(a)(1),
defines the crime of theft in the second degree. It states that
a person commits second-degree theft "if the person commits theft
as defined in AS 11.46.100 and the value of the property ... is
$500 or more".
The wording of Cheely's indictment is essentially the
same as the wording of the indictment in Williams, wording that
this court declared was sufficient to notify the defendant that
he might be convicted of theft by receiving. Nothing in the
wording of the indictment restricted the State to pursuing a
theory of theft by asportation to the exclusion of other
theories. If Cheely believed that this indictment allowed him to
defend by asserting that he was guilty, not of theft by
asportation, but of theft by receiving, his belief was
unreasonable and completely unfounded in law.
Cheely further asserts, however, that, even if the
indictment itself did not limit the potential theories of theft,
the prosecutor's conduct of the litigation implicitly committed
the State to a theft-by-asportation theory. Cheely points out
that the prosecutor did not seek a jury instruction on theft by
receiving and did not argue this theory, even as an alternative,
during the State's summation to the jury.
Cheely relies on this court's decision in Rollins v.
State, 757 P.2d 601 (Alaska App. 1988). In Rollins, the
defendant was indicted for third-degree assault - placing another
person in fear of imminent serious physical injury. AS
11.41.220(a)(1). After the close of the evidence, the defense
initially requested a jury instruction on the lesser included
offense of fourth-degree assault (placing another in fear of
imminent, non-serious physical injury) but then withdrew this
request. The State did not object to submitting the case to the
jury with the jury's deliberations limited to third-degree
assault. Rollins, 757 P.2d at 602.
During final argument, Rollins's attorney focused on
the element of serious physical injury, arguing that the victim
might have reasonably feared some physical injury but not the
serious physical injury necessary for conviction of third-degree
assault. The jury, apparently crediting the defense attorney's
argument, sent a note to the judge asking what they should do if
they found that the victim had reasonably feared only non-serious
injury. In reply, and over Rollins's objection, the judge
instructed the jury on fourth-degree assault, and the jury
convicted Rollins of this lesser charge. Id.
On appeal, this court reversed Rollins's conviction.
This court recognized that Rollins was, as a matter of law, on
notice that fourth-degree assault was a potential lesser included
offense. Nevertheless, this court held that, after the State and
the trial judge agreed to send the case to the jury solely on the
charge of third-degree assault, Rollins was entitled to rely on
this posture of the case when formulating his summation to the
jury. More specifically, this court concluded that Rollins had
justifiably relied to his detriment on the restricted charge when
he decided to focus his argument on the State's failure to prove
the element of fear of imminent "serious physical injury". Id.
at 602-03.
Cheely analogizes his case to Rollins. He argues that,
even if he could not justifiably rely on a theft-by-receiving
"defense" before the evidence closed, he became entitled to rely
on this "defense" when the prosecutor failed to explicitly seek
conviction under a theft-by-receiving theory and allowed the case
to go to the jury under the general charging language of AS 11.
46.100(a). At this point, Cheely asserts, he could justifiably
argue to the jury that he should be acquitted because he had only
received stolen property and had not stolen the truck himself.
Cheely's argument ignores the fact that there no longer
exist separate crimes of "theft by taking" and "theft by receiv
ing". As Judge Souter recognized, a person who takes possession
of stolen property with the required culpable mental states has
committed the crime defined in AS 11.46.100(a)(1) and alleged in
Cheely's indictment - has, "with intent to deprive another of
property or to appropriate property of another to oneself or a
third person, ... obtain[ed] the property of another".
Judge Souter's original packet of jury instructions
defined the crime of theft in the broad language of AS 11.46.
100(a)(1). The court instructed the jury that Cheely was guilty
of theft if, "with intent to deprive another of property or
appropriate property of another to himself or a third person, he
... obtain[ed] the property of another". In explanation of this
main instruction, the jury was informed that
"deprive another of property" means to with
hold property of another or cause property of
another to be withheld permanently or for so
extended a period or under such circumstances
that the major portion of its economic value
or benefit is lost to that [other] person[;]
that
"appropriate property of another to oneself
or to a third person" means to exercise con
trol over property of another or aid a third
person to exercise control over property of
another, permanently or for so extended a
period or under such circumstances as to
acquire the major portion of the economic
value or benefit of the property[;]
and that
"[o]btain" means to bring about a transfer or
purported transfer of a legal interest in the
property to the obtainer or another[,] or to
exert control over property of another.
As discussed above, the drafters of the criminal code crafted
these definitions to be broad enough to cover all the methods of
theft, including theft by receiving. Thus, the jury's original
instructions, without any supplementation, allowed the jury to
convict Cheely of theft if they were convinced that he had
committed theft by receiving.
In Rollins, this court reversed the defendant's convic
tion because the defense attorney had detrimentally relied on the
government's acquiescence in the defendant's proposal to litigate
the case on the main charge alone, without the alternative of a
lesser included offense. The government's failure to object when
the defendant withdrew his proposed instruction on fourth-degree
assault amounted to the government's affirmative indication that
it was willing to have the case litigated "all or nothing". In
contrast to Cheely's case, the original jury instructions in
Rollins did not allow the jury to return a verdict on any crime
or theory other than the one argued by counsel. The defense
attorney in Rollins could reasonably and justifiably formulate
his final argument in reliance on this fact.
Cheely, however, can claim no similar detrimental
reliance. As discussed above, the court's initial instructions
to the jury (which Cheely does not challenge) encompassed theft
by receiving as well as theft by asportation. Unlike the
defendant in Rollins, Cheely has no justifiable claim that he
formulated his theft-by-receiving "defense" in reliance on the
court's original instructions. And while it is true that the
prosecutor's final argument to the jury did not urge the jury to
consider a theft-by-receiving theory, the prosecutor never
affirmatively disavowed reliance on such a theory. In short,
when Cheely's attorney formulated his summation to the jury, he
had no justifiable expectation that theft by receiving would be a
defense to the charge against his client.
In the absence of justifiable, detrimental reliance of
the kind that was present in Rollins, Cheely's "defense" that he
committed theft by receiving rather than theft by asportation
amounted to a concession that he committed the crime he was
charged with, in a slightly different manner than argued by the
prosecution but in a manner still covered by the definition of
theft contained in the court's instructions to the jury.
Granting an acquittal to Cheely under these circumstances would
return us to the days of "indoor sport" decried by LaFave and
Scott and specifically rejected by the Alaska legislature when it
enacted our present theft statutes. We uphold Judge Souter's
decision to instruct the jury on theft by receiving in response
to their questions.
The judgement of the superior court is AFFIRMED.
