Paul A. Tallent v. State of Alaska (12/26/97) ap-1565
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PAUL A. TALLENT, )
) Court of Appeals No. A-6267
Appellant, ) Trial Court No. 3AN-95-8358 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1565 - December 26, 1997]
______________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Suzanne Weller, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. William
H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Paul A. Tallent was convicted of second-degree theft
under AS 11.46.130(a)(6)(C). This statute provides that a theft
of between $50 and $500 - an offense that would normally be third-
degree theft - constitutes second-degree theft if the defendant
has been convicted of similar thefts twice before in the
preceding five years. Tallent's appeal raises two issues, both
involving the question of whether the jury should have been
informed of his prior convictions.
The first issue is whether the existence of a
defendant's prior theft convictions is an element of the offense
of second-degree theft under AS 11.46.130(a)(6). Tallent argues
that the defendant's prior convictions are not an element of the
crime but are, instead, simply a factor that enhances the
defendant's sentence. Accordingly, Tallent argues that the
existence of his prior convictions was an issue for the court,
not the jury. As explained below, we reject Tallent's
construction of the second-degree theft statute; we conclude that
the existence of a defendant's prior convictions is an element of
the offense.
The second issue is whether, even though the existence
of prior convictions is an element of the offense, the trial
judge is nevertheless empowered to keep this element of the
offense from the jury if (1) the defendant offers to stipulate to
the prior convictions and (2) the defendant agrees to waive jury
trial on this element. We conclude that we need not resolve this
issue. Even though Tallent's trial judge handled the matter of
the prior convictions in a different way, the way chosen by the
trial judge was proper and did not prejudice Tallent.
Facts of the case
On October 31, 1995, Paul Tallent was in an
Anchorage Sears store. A store security guard was
watching Tallent on a surveillance video monitor. The
security guard observed Tallent grab an object from the
perfume counter and then walk out of the store. The
security guard and a companion followed Tallent to a
gas station across the street, where they confronted
him. Tallent was holding a bottle of perfume sold by
Sears for $62.50; he also had a plastic bag containing
an identical bottle of perfume and a thermostat sold by
Sears for $54.99. Tallent had no wallet, no
identification, no money, no credit cards, and no
receipt for the items in his possession. The security
guards arrested Tallent and summoned the Anchorage
police. Tallent was subsequently indicted for second-
degree theft, based on his prior theft convictions.
Before his trial began, Tallent asked the
court to prohibit the State from introducing evidence
of his prior theft convictions. Tallent argued that he
would be unduly prejudiced if the jury learned that he
had previously been convicted of theft. He offered to
concede the existence of the prior convictions.
The prosecutor replied that he did not oppose
resolving the issue of Tallent's prior convictions by
stipulation, but he did oppose Tallent's proposal to
withhold this issue from the jury. The prosecutor
argued that Tallent's prior theft convictions were an
element of the offense, a factual issue that the State
was obliged to prove beyond a reasonable doubt to the
jury. The prosecutor feared that if this issue was
withheld from the jury, any resulting verdict would be
defective.
The trial judge, Superior Court Judge Larry
D. Card, acknowledged that evidence of Tallent's prior
theft convictions might prejudice the jury's
consideration of the current theft charge. He inquired
if Tallent had considered waiving a jury altogether and
having the case tried to the court. Tallent's attorney
indicated that Tallent was not willing to waive jury
trial.
Judge Card then ruled that the jury would
have to decide the issue of Tallent's prior theft
convictions. The judge based this ruling on his
conclusion that prior theft convictions are an element
of second-degree theft under AS 11.46.130(a)(6), and on
the further conclusion that, in a criminal jury trial,
the law requires the jury to decide each and every
element of the offense.
Nevertheless, in order to minimize the
prejudice that would otherwise result if the state
presented the prior thefts in fuller detail, Judge Card
suggested that the parties draft a stipulation
regarding the prior convictions. The court took a
short recess, and the parties returned with an almost-
completed stipulation. The sole point of contention
was that Tallent wanted the stipulation to refer to his
prior convictions only by statute number, leaving out
any mention of the word "theft". Judge Card denied
this request. The judge anticipated that a statute-
number reference would leave the jury speculating as to
the nature of Tallent's convictions; he concluded that
the jury should be told the relevant information - that
Tallent's prior crimes were thefts.
The stipulation, as finally drafted and read
to the jury, stated:
1) That the defendant, Paul Tallent was
convicted and sentenced on 20 June 1994 in
case 3AN-S94-3635 of the crime of theft in
the third degree in violation of AS
11.46.140(a)(1) before Judge Michael
Wolverton in Anchorage District Court.
2) That the defendant, Paul Tallent was
convicted and sentenced on 15 November 1994
in case 3AN-S94-8427 of the crime of theft in
the third degree in violation of AS
11.46.140(a)(1) before Judge Sigurd E. Murphy
in Anchorage District Court.
3) That Judgements of Conviction were
entered in both cases, and those convictions
have not been modified by any subsequent set-
aside or motion for post-conviction relief.
In order to mitigate the prejudice
of this information and to encourage the jury
to use this information only for the purpose
of establishing the "prior convictions"
element of the offense, Judge Card instructed
the jury that Tallent's prior convictions
were not to be considered evidence of his
propensity to commit theft. Instead, Judge
Card admonished the jury to focus their
attention on whether the State had proved
beyond a reasonable doubt that Tallent had
committed the current offense (the theft from
Sears alleged to have occurred on October 31,
1995).
The jury found Tallent guilty, and
this appeal followed.
Prior theft convictions are an element of second-degree
theft under AS 11.46.130(a)(6)
Tallent first argues that his jury should not
have heard any evidence concerning his prior
convictions because the existence of prior convictions
is not an element of the offense of second-degree theft
under AS 11.46.130(a)(6).1 Tallent asserts that
AS 11.46.130(a)(6) does not define the substantive
offense of second-degree theft; instead, Tallent
argues, the statute is a penalty-enhancement provision
for repeat offenders convicted of third-degree theft.
If Tallent is correct, then the existence of Tallent's
prior convictions would be relevant only for purposes
of sentencing, and it would be error to allow the jury
to decide this issue.
Subsection 130(a)(6) was enacted as part of
SLA 1988, ch. 133. This session law added subsections
to the first-degree, second-degree, and third-degree
theft statutes. In general terms, each new subsection
declared that a defendant who committed theft for the
third time in five years was now guilty of the next
higher degree of theft. That is, a repeat second-
degree theft offender would be guilty of first-degree
theft, a repeat third-degree theft offender would be
guilty of second-degree theft, and a repeat fourth-
degree theft offender would be guilty of third-degree
theft. See SLA 1988, ch. 133, 1-3.
The language and structure of AS
11.46.130(a)(6) contradict Tallent's assertion that his
prior convictions serve merely to enhance the penalty
for what was really a third-degree theft. The
statutory language, and its placement as a subpart of
AS 11.46.130(a), plainly suggest that an offender who
steals between $50 and $500 for the third time in five
years commits theft in the second degree, and that the
defendant's prior convictions constitute one element of
this offense.
Alaska does not enforce the traditional
"plain meaning" rule of statutory construction (the
rule that, if the wording of a statute is "plain", then
courts will look no further to determine the
legislature's intention). However, when the wording of
a statute is apparently clear, a litigant like Tallent
who argues for a different construction of the statute
bears a heavy burden of demonstrating that the
legislature intended something different from what the
words would normally mean. Peninsula Marketing Assn.
v. State, 817 P.2d 917, 922 (Alaska 1991); Helton v.
State, 778 P.2d 1156, 1158 (Alaska App. 1989).
The legislative history of SLA 1988, ch. 133
provides some support for Tallent's construction of the
statute. The legislature described SLA 1988, ch. 133
as "An Act increasing the penalties for repeat
convictions for the crimes of theft and concealment of
merchandise". Tallent points out that, during its
journey through the legislature as House Bill 461,
people sometimes referred to the new law as a penalty
provision. For example, in his fiscal note to the
House Judiciary Committee, Legislative Counsel Jack
Chenowith described HB 461 as "primarily a sentencing
bill". See 1988 House Fiscal Notes at 414.
However, returning to the language of the act
itself, we conclude that the newly-enacted subsections
were not merely penalty provisions. As amended by SLA
1988, ch. 133, the second-degree theft statute, AS
11.46.130(a), declared that a person committed the
offense of second-degree theft if the person committed
theft and:
(1) the value of the property or
services [was] $500 or more but less than
$25,000;
(2) the property [was] a firearm or
explosive;
(3) the property [was] taken from the
person of another; or
(4) the value of the property [was] $50
or more but less than $500 and within the
preceding five years the person [had] been
convicted and sentenced on two or more
separate occasions in this or another
jurisdiction of [theft in at least the third
degree, or felony concealment of
merchandise].
This court construed a similarly
worded statute in Morgan v. State, 661 P.2d
1102 (Alaska App. 1983). The statute at
issue in Morgan was former AS 4.16.200(b),
which made bootlegging (sale of liquor
without a license) a felony offense under
certain conditions. One of those conditions
was that the defendant had previously been
convicted of bootlegging.2
Morgan was charged with felony
bootlegging under this provision. However,
because the State viewed Morgan's prior
conviction as a sentence-enhancement factor
rather than an element of the offense, the
State drafted an indictment that did not
include any allegation concerning Morgan's
prior conviction, and the State presented no
evidence of the prior conviction to the grand
jury. Morgan, 661 P.2d at 1103. Morgan
attacked the indictment on this basis, but
the trial judge agreed with the State that
Morgan's prior conviction was not an element
of the offense. Id. Later, at trial, Morgan
asked to have the jury determine the
existence of his prior conviction. The trial
judge rejected Morgan's request and decided
the prior conviction issue himself. Id.
On appeal, this court held that AS
4.16.200(b) created the substantive offense
of felony bootlegging, with the existence of
a prior conviction constituting one element
of that offense. Id. Because a defendant is
entitled to have the grand jury and the petit
jury decide all essential elements of the
charged offense, this court held that
Morgan's trial judge should have dismissed
the indictment, and that the judge later
erred "in not permitting the trial jury to
decide whether the state had proved beyond a
reasonable doubt the prior conviction element
of this offense." Id. We noted that the
structure of the statute indicated the
legislature's intention to create a separate
felony offense. Id. Moreover, to the extent
that the wording of the statute might be
ambiguous on this point, we expressed our
hesitancy to construe a penal statute so as
to deny a defendant the right to grand jury
and petit jury determination of all essential
factual issues. Id. at 1104.
Morgan established a rule of
construction for statutes that increase the
degree of a criminal offense based on the
defendant's prior convictions. After Morgan,
such a statute will be interpreted to create
a separate substantive offense, and the
defendant's prior convictions will be
construed as an element of that offense,
unless the legislature clearly indicates a
contrary intention.
Morgan was decided in 1983, five
years before the legislature passed SLA 1988,
ch. 133. The language of the new theft
provisions enacted in SLA 1988, ch. 133
parallels the language of the bootlegging
statute construed in Morgan. Pursuant to
Morgan, we presume that the new theft
provisions were designed to create new
substantive offenses, with prior convictions
being one element of the offense.
True, the legislative history shows
that at least some of the people involved in
the legislative process viewed the statute as
a "sentencing" provision. However, this view
is not reflected in the language of the
statute itself. We note that the legislature
has in the past drafted statutes that clearly
call for enhanced penalties depending on a
defendant's prior record. See, for example,
the felony sentencing provisions of AS
12.55.125 and the driving while intoxicated
statutes, AS 28.35.030(b) and AS 28.35.
030(n). The second-degree theft statute, on
the other hand, gives no indication that the
legislature viewed a defendant's prior
convictions as merely penalty-enhancing.
We therefore conclude that AS
11.46.130(a)(6) defines a separate method of
committing the substantive crime of second-
degree theft, and that a defendant's prior
convictions are an essential element of that
crime. To charge a defendant with second-
degree theft under this subsection, those
offenses must be alleged in the indictment
and proved to the grand jury; to prove the
defendant guilty at trial, the State must
prove those prior convictions beyond a
reasonable doubt to the trier of fact.
Does a trial judge have the authority to withhold this
element of the crime from the jury?
Tallent argues in the alternative that, even
though his prior theft convictions are an element
of second-degree theft under subsection 130(a)(6),
Judge Card nevertheless had the authority to
exclude all evidence of those convictions from
Tallent's trial, and to decide this element
himself rather than submitting the issue to the
jury.
As explained above, Tallent urged Judge Card
to pursue this course. He pointed out that the
jury's consideration of his guilt could be
unfairly influenced by evidence that he had
committed theft twice before.
(To further induce Judge Card to withhold
this issue from the jury, Tallent offered to stipulate
that he had the requisite prior convictions.
Logically, however, it makes little difference whether
a defendant is willing to stipulate to the prior
convictions or instead wishes to contest them. The
point of Tallent's argument is that when a defendant is
on trial for theft under a repeat offender provision,
the jury will be unfairly prejudiced by evidence of the
defendant's prior theft convictions. If the jury is
the trier of fact on this issue, the same type of
danger is present whether the evidence of prior
convictions comes in by stipulation or through the
normal litigation process. Conversely, if fairness
requires the judge to be the trier of fact on the issue
of prior convictions, the fairness of this procedure
does not hinge on whether the defendant is willing to
stipulate to the prior convictions or instead wishes to
contest them.)
Judge Card denied Tallent's request; the
judge concluded that he had no authority to keep the
issue from the jury because the existence of the prior
convictions was an element of the offense. On appeal,
Tallent asserts even if prior convictions are an
element of the offense, Judge Card nevertheless had the
power to withhold that issue from the jury if the judge
concluded that evidence of the prior convictions would
be more prejudicial than probative.
The question Tallent raises has no ready
answer under Alaska law. In State v. McLaughlin, 860
P.2d 1270 (Alaska App. 1993), this court addressed a
similar question: whether, when a defendant is
prosecuted for being a felon in possession of a
concealable firearm, the trial judge is authorized to
exclude all evidence of the defendant's prior felony
conviction and keep this issue from the jury. We held
that a trial judge can not do this. But in a footnote,
we recognized that the result might be different if the
defendant's conduct would be unlawful even in the
absence of prior convictions:
We ... note that our decision addresses
only the specific circumstances of this case,
in which the charged offense consists of
conduct that is ordinarily lawful [and] is
rendered unlawful only because of the
defendant's prior conviction of a felony. By
contrast, other types of crimes that include
the existence of a prior felony conviction as
an element deal with conduct that is already
independently unlawful; in such cases, the
prior-conviction element serves only to
enhance the seriousness of the offense. See,
e.g., Morgan v. State, 661 P.2d 1102, 1103-04
(Alaska App. 1983) (unlicensed sale of
alcohol in a local option area, normally a
class A misdemeanor, becomes a class C felony
when the defendant has previously been
convicted of a similar offense).
In this latter type of case, failing to
inform the jury of the prior-conviction
element arguably entails few of the problems
presented in the former type of case;
consequently, a strong argument might be made
for a significantly broader range of trial
court discretion. See Azzarella v. State,
703 P.2d 1182, 1188 (Alaska App. 1985). The
facts of this case do not require us to
decide the issue.
McLaughlin, 860 P.2d at 1278 n.15.
Despite the fact that the
McLaughlin footnote expressly disavowed any
intention of "decid[ing] the issue",
Tallent's brief to this court all but assumes
that the McLaughlin footnote is a directive
to trial judges to withhold the issue of
prior convictions from the jury in cases like
his - cases where the defendant's conduct on
the current occasion would be criminal even
without reference to the prior convictions.
This is reading too much into the footnote.
We left the issue undecided in McLaughlin
because, even though evidence of prior
convictions will often create a danger of
unfair prejudice, other legal aspects of the
situation point toward leaving the issue with
the jury.
For instance, Tallent's primary
argument is that a trial judge is authorized
to exclude evidence of the defendant's prior
crimes whenever "the existence of [the] prior
crime[s] only enhance[s] the seriousness of
the current charge, and the [defendant's]
conduct [on the current occasion is]
independently unlawful." No Alaska case has
explicitly recognized such authority in a
trial judge. Moreover, one might reasonably
question the premise underlying Tallent's
argument.
Criminal offenses often require
proof of facts that can potentially sway the
emotions of jurors or lead them to return a
verdict based on improper considerations.
For instance, under AS 11.41.500(a)(3),
unarmed robbery becomes robbery in the first-
degree if the robber causes serious physical
injury to any person. Depending upon the
severity of the injury (if, for example, the
victim was maimed or permanently disfigured),
such evidence might conceivably lead the jury
to decide the case based on outrage at the
injury suffered by the victim, rather than
demanding that the government meet its full
burden of proof. Tallent's argument implies
that a defendant who is prosecuted for first-
degree robbery under 500(a)(3) should be able
to stipulate to the victim's injury and then
demand that the trial judge (1) bar the
government from introducing any evidence of
the injury and (2) withhold the issue of
serious physical injury from the jury. Since
robbery is a crime whether or not the robber
inflicts injury, the defendant's infliction
of serious physical injury "only enhances the
seriousness of ... conduct [that is]
independently unlawful". Under Tallent's
reasoning, the trial judge could confine the
jury to deciding whether the defendant
committed second-degree robbery. However, we
are aware of no legal authority to support
this outcome.
Tallent suggests that this court's
decision in Morgan v. State, 661 P.2d 1102,
supra, supports his argument. As explained
above, Morgan dealt with the crime of felony
bootlegging; this court
held that a defendant's prior bootlegging
conviction was an element of the offense, and
the State would have to prove the prior
conviction at trial. This court then added
the following footnote, 661 P.2d at 1104 n.4:
We recognize that some defendants ...
will not desire to have the state prove their
prior conviction at trial. These defendants
have the option of stipulating to the
conviction. Mead v. State, 445 P.2d 229, 234
(Alaska 1968), cert. denied, 396 U.S. 855, 90
S.Ct. 117, 24 L.Ed.2d 104 (1969).
Tallent interprets this footnote as
indicating approval of his suggestion that a
defendant can stipulate to prior convictions
and ask to have this issue withheld from the
jury.
However, the fact that a
defendant's prior convictions might be proved
by stipulation (rather than through the
introduction of testimony and/or documents)
does not resolve the question of whether the
jury or the trial judge will be the trier of
fact on the issue of the prior convictions.
If anything, the Morgan footnote suggests
that the jury should remain the trier of fact
even when the defendant is willing to
stipulate to the prior convictions. The
Morgan footnote cites the Alaska Supreme
Court's decision in Mead, where the defendant
was tried for being a felon in possession of
a concealable firearm. The parties in Mead
stipulated that the defendant had previously
been convicted of a felony. However, this
stipulation was given to the jury, and the
jury remained the trier of fact on the issue
of the defendant's prior conviction. Mead,
445 P.2d at 234.
Tallent suggests, for the first
time on appeal, that a defendant might waive
his or her right to jury trial on this one
element and consent to have the trial judge
decide the question of the prior convictions.
This issue is not preserved for appeal;
Tallent did not offer such a waiver in the
trial court.
Moreover, Tallent's suggestion
raises yet another unresolved issue: whether
the State has a right to insist on a jury
determination of all the elements of the
crime, even when the defendant wishes to
waive jury trial on one or more elements.
Alaska Criminal Rule 23(a) states: "Cases
required to be tried by jury shall be so
tried unless the defendant waives a jury
trial in writing with the approval of the
court and the consent of the state." In
Horton v. State, 758 P.2d 628, 630 (Alaska
App. 1988), this court held that, under
Criminal Rule 23(a), a defendant can not
waive jury trial unless the State agrees.
Horton suggested that "there might be some
cases where requiring the defendant to
undergo a jury trial might result in denying
the defendant the right to an impartial
trial", and that Alaska Criminal Rule 53
might provide the trial judge with authority
to relax Rule 23(a) "where necessary to
advance justice". However, the Horton
decision merely recognized the issue; it did
not resolve it.
Having catalogued the issues raised
by Tallent's argument, we conclude that we
need not resolve all of them. When Tallent
asked Judge Card to exclude all evidence of
his prior theft convictions, he did not
discuss all of these potential legal
problems. He merely asserted that Morgan
authorized a trial judge to withhold a
defendant's prior convictions from the jury.
After Judge Card ruled (correctly) that
Tallent's prior convictions were an element
of the offense, Tallent's request boiled down
to essentially one legal issue: whether
Judge Card had the authority to decide the
prior convictions element himself and bar the
jury from considering this element or hearing
any evidence concerning it.
As we have just explained, Morgan
does not resolve this issue. If anything,
the Morgan footnote suggests, by its citation
to Mead, that even when a defendant
stipulates to the existence of prior
convictions, the issue remains with the jury.
On this record, and given the fact that
Tallent never indicated that he was willing
to waive jury trial, Judge Card did not abuse
his discretion when he rejected Tallent's
reading of Morgan and concluded that all the
elements of the offense needed to be decided
by the jury. Further, under these
circumstances, we can not say that Judge Card
abused his discretion when he followed a
course similar to the one approved by the
supreme court in Mead - (1) having the jury
decide the issue of the prior convictions,
but (2) limiting proof of the prior
convictions to a bare-bones stipulation, and
(3) specifically instructing the jury that
the defendant's prior convictions were not to
be taken as evidence of his propensity to
commit theft, and that the real issue in the
case was whether the defendant committed the
currently charged theft.
Tallent questions Judge Card's
decision to refer to the prior convictions as
"thefts". He argues that the judge should
have allowed the stipulation to track the
language of the second-degree theft statute -
so that it would merely tell the jury that
Tallent had twice previously been convicted
of violating "AS 11.46.140(a)(1) or (2), or
an offense under another law or ordinance
with similar elements".
We agree with Judge Card that an
unexplained reference to a statute number
"[wouldn't] tell the jury anything", and that
it was better to be straightforward in this
matter. An unexplained statutory reference
might have encouraged the jurors to engage in
speculation as to what crimes Tallent had
committed in the past to make his current
offense more serious. At best, Tallent might
hope that the more knowledgeable jurors would
discern that his past crimes must have been
theft-related. At worst, the jurors might
conclude that Tallent had committed more
serious crimes. Judge Card did not abuse his
discretion when he ruled that the stipulation
should speak of "theft" rather than merely
reciting statute numbers.
Conclusion
We hold that a defendant's prior theft
convictions are an element of second-degree theft under
AS 11.46.130(a)(6). We further hold that, under the
facts of this case, Judge Card did not abuse his
discretion when he ruled (1) that the jury should
decide this issue and (2) that Tallent's prior thefts
should be proved by stipulation, coupled with a
cautionary instruction regarding the limited relevance
of the prior convictions. For this reason, the
judgement of the superior court is AFFIRMED. However,
we wish to emphasize certain aspects of our decision.
First, the issue presented in Tallent's case
does not arise if a defendant's prior convictions are
relevant for some purpose other than to establish the
"prior convictions" element of first-, second-, or
third-degree theft. If the defendant's prior convic
tions are relevant for some other purpose, see Alaska
Evidence Rule 404(b), and if the trial judge concludes
that the probative value of this evidence is not
outweighed by the danger of unfair prejudice, see
Alaska Evidence Rule 403, then the jury can of course
hear evidence of the prior convictions. The problem we
address here arises only in cases like Tallent's, where
the prior convictions have no relevance other than to
prove the "prior convictions" element of the crime.
Second, we do not hold that the stipulation
used in Tallent's case is the only correct method for
dealing with the issue of the defendant's prior
convictions in such cases. Nor do we hold that it is
the best method. We hold only that it is a permissible
method, and that it was a fair method under the facts
of Tallent's case.
We again note that a defendant's willingness
to stipulate to prior convictions does not answer the
question of who will be the trier of fact on this
element of the crime. Criminal cases are tried to a
jury unless the defendant waives the right to jury
trial and the government likewise consents to have the
case tried to the court. In a jury trial, even when
the parties reach a stipulation concerning the
defendant's prior convictions, the stipulation will be
presented to the jury, and the jury will decide the
prior convictions element.
It is possible that a defendant might offer
to waive the right to jury trial on the prior
convictions element of the offense. This waiver could
not be made through counsel; it would have to be made
by the defendant personally. See McGlauflin v. State,
857 P.2d 366, 368-69 (Alaska App. 1993). If the
defendant waives jury trial on the prior convictions
element, and if the State is likewise willing to have
the trial judge decide this element, then we see no
reason why this element should not be tried to the
court. If, however, the State is not also willing to
waive jury trial on the element of the defendant's
prior convictions, then the defendant's offer to waive
jury trial would raise another unresolved question:
whether a defendant can unilaterally waive jury trial
on one or more elements of a criminal charge. See
Alaska Criminal Rule 23(a); Horton v. State, 758 P.2d
628, supra.
Another way of dealing with this problem -
one that we recommend to judges in the future - is to
bifurcate the trial. In a bifurcated trial, the jury
would first decide whether the defendant was guilty of
theft on the date specified in the indictment; if the
jury found the defendant guilty, the same jury would
then decide the issue of the defendant's prior
convictions. This solution would preserve both
parties' right to a jury determination of all issues,
while at the same time avoiding the potential for
unfair prejudice that would otherwise be posed by
evidence of the defendant's prior convictions.
Moreover, this solution works equally well regardless
of whether the defendant is willing to stipulate to the
prior convictions or wishes to contest them.
_______________________________
1 AS 11.46.130(a)(6) declares that a person commits theft
in the second degree if the person commits theft of property
valued at between $50 and $500 "and within the preceding
five years the person has been convicted and sentenced on
two or more separate occasions in [Alaska] or another
jurisdiction of[:]
(A) AS 11.46.120 [i.e., first-degree theft] or an
offense under another law or ordinance with similar
elements;
(B) a crime set out in this subsection [i.e., second-
degree theft] or an offense under another law or ordinance
with similar elements;
(C) AS 11.46.140(a)(1) or (2) [i.e., third-degree theft
committed by stealing property valued at between $50 and
$500, or by stealing a credit card], or an offense under
another law or ordinance with similar elements; or
(D) AS 11.46.220(c)(1) or (c)(2)(A) [i.e., concealment
of merchandise if the merchandise is a firearm or is valued
at $50 or more], or an offense under another law or
ordinance with similar elements."
2 Under former AS 4.16.200(b)(1), a person who sold liquor
without a license in a local-option area was "guilty of a
class C felony ... if [the person] ha[d] previously been
convicted of a violation of AS 4.11.010" [i.e., convicted of
selling liquor without a license].
