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Dobberke v. State (02/08/2002) ap-1787
Dobberke v. State (02/08/2002) ap-1787
NOTICE
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encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD R. DOBBERKE, )
) Court of Appeals No. A-7561
Appellant, ) Trial Court No. 3KN-S99-264 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1787 February 8, 2002]
)
Appeal from the Superior Court, Third Judicial
District, Kenai, Charles K. Cranston, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Maarten Vermaat and Kim S. Stone, Assistant Attorneys
General, Office of Special Prosecutions and Appeals, Anchorge, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
A jury convicted Donald R. Dobberke of first-degree
vehicle theft. [Fn. 1] However, we conclude that the jury
instructions constituted plain error because they failed to specify
that Dobberke's initial taking of the car had to be trespassory.
Therefore, we reverse Dobberke's conviction.
Facts and Proceedings
On August 7, 1998, Dobberke rented a 1996 Mercury Mystique
from the Hertz Rent-A-Car franchise in Kenai for three days.
Superior Oilfield Logistics, a corporation, owns the franchise; Dan
VanZee owns the corporation.
Dobberke kept the Mercury beyond the three-day rental
period, but he did not sign another rental contract. Instead,
VanZee allowed Dobberke to extend the rental agreement on several
occasions when Dobberke brought cash or money orders to the
franchise. VanZee filled out new forms each month from September
through February 1999 showing that Dobberke rented the Mercury, but
these forms were not signed by Dobberke.
By early October, Dobberke was behind on the payments and
had not come to the franchise in about two weeks. VanZee called
Dobberke, but the phone had been disconnected. VanZee drove to the
address provided by Dobberke, but he did not believe anyone was
living there. VanZee called the police and asked for their
assistance locating the car.
The Kenai police went to Dobberke's house and left a note
with a roommate about the car. Shortly thereafter, Dobberke went
to Hertz and paid up on his rental. VanZee allowed Dobberke to
continue using the Mercury. Dobberke told VanZee that he planned
to purchase the Mercury after he obtained financing for his
business. In late October, Dobberke sent VanZee a note
stating that he wanted VanZee to prepare a sales contract for the
car. VanZee prepared a purchase order agreement. He testified that
such a document is often necessary for buyers to obtain financing.
In early November, VanZee saw Dobberke at a real estate
agency and told him the paperwork was ready. On November 3,
Dobberke went to the Hertz office and signed the purchase order
agreement. Dobberke told VanZee that he was going to the bank to
have a check issued and he would be right back. VanZee testified
that he thought Dobberke had financing and would be back within the
hour. However, Dobberke did not return.
The next day, VanZee went on a ten-day trip. When he
returned, he could not locate Dobberke, so he called the Kenai
police to report that the car was again missing. On December 3,
VanZee saw the Mercury at the Kenai Pawnshop. He called the police
and then drove around the block. When he came around the block
again, the car was gone. The police told VanZee that his problem
was a civil matter, but VanZee testified that it was his car and
"for me to have to go to court to get my vehicle back seemed a
little ridiculous."
On February 6, 1999, the police received a report of
Dobberke driving the missing car in Kenai heading toward Nikiski.
The police stopped Dobberke, and he followed them in the Mercury to
the police department. Dobberke told the police that he was still
trying to obtain financing for the car, but it was taking longer
than he expected. The police eventually let Dobberke leave with the
car and then called VanZee. VanZee called his tow truck driver and
told him to go to Dobberke's house and take possession of the car.
According to VanZee, "the Kenai police had given me an address on
a couple of occasions, the Beacon Apartments in north Kenai ... I
felt Mr. Dobberke was headed there ... ." The tow truck driver went
to the Beacon Apartments and located the car, but he told VanZee he
was uncomfortable towing it away. VanZee then went personally to
the Beacon Apartments and took possession of the car.
On March 5, 1999, a grand jury indicted Dobberke on one
count of first-degree vehicle theft, [Fn. 2] one count of second-
degree theft, [Fn. 3] and one count of failure to return a rental
vehicle. [Fn. 4] The State amended the indictment on July 7, 1999,
charging Dobberke only with first-degree vehicle theft.
After the State's case-in-chief, Dobberke moved for a
judgment of acquittal based on this court's decision in Eppenger v.
State. [Fn. 5] Superior Court Judge Charles K. Cranston denied the
motion. Dobberke did not present a case and did not object to the
jury instructions. Dobberke now appeals.
Discussion
Should the court have granted Dobberke's acquittal motion?
Dobberke claims that the superior court should have
granted his motion for judgment of acquittal. According to
Dobberke, Eppenger stands for two propositions. First, an
individual cannot be prosecuted for either first- or second-degree
vehicle theft if the person took the car pursuant to an oral
agreement. And second, an individual cannot be prosecuted for
first-degree vehicle theft if the person took the car pursuant to
a written agreement. Dobberke argues that his case involved both
oral and written agreements, and regardless of which was controlling
on November 3, prosecution for first-degree vehicle theft was
inappropriate because he obtained the Mercury with VanZee's consent.
In Eppenger, we discussed the legislative history of the
first-degree and second-degree vehicle theft statutes. [Fn. 6] We
noted that the plain language of AS 11.46.360(a) appears to
criminalize driving a vehicle "even if the defendant originally
obtained the vehicle with permission." [Fn. 7] However, we agreed
with Eppenger that "it does not seem reasonable that the legislature
intended to treat this conduct as a felony when it provided, in a
related statute, that unreasonable retention of a car under a
written agreement would be punishable as a misdemeanor." [Fn. 8]
Judge Mannheimer's concurrence also suggested that the initial
taking of the vehicle had to be "trespassory." [Fn. 9]
Dobberke argues the superior court should have granted a
judgment of acquittal because, since he obtained possession of the
Mercury with VanZee's permission, his taking could not be
"trespassory." However, it is clear that, at common law, one who
fraudulently obtains possession of property has committed a
trespassory taking. [Fn. 10] Although the evidence showed that
Dobberke obtained the Mercury with VanZee's express or implied
permission, a fair-minded juror could conclude from the evidence
presented and the reasonable inferences arising from the evidence
that Dobberke fraudulently obtained VanZee's consent to take the
Mercury. [Fn. 11] Thus, we uphold the denial of Dobberke's motion
for judgment of acquittal.
Was the jury properly instructed on the elements of first-
degree vehicle theft?
Dobberke did not object to the jury instructions in the
superior court. Nevertheless, Dobberke argues that Judge Cranston
committed plain error when he failed to instruct the jury that
Dobberke's initial taking of the Mercury must have been trespassory
for the jury to convict him of first-degree vehicle theft. In the
context of jury instructions, an appellate court will only find
plain error where the erroneous instruction or lack of instruction
"creates a high likelihood that the jury followed an erroneous
theory[,] resulting in a miscarriage of justice." [Fn. 12]
Although we did not directly hold in Eppenger that the
initial taking of a car must be trespassory for a person to be
liable for first-degree vehicle theft, Judge Mannheimer's
concurrence suggested that requirement. [Fn. 13] Now that we
directly face that question, we adopt the reasoning advanced in
Judge Mannheimer's concurrence in Eppenger.
Under AS 11.46.360(a) first-degree vehicle theft it
is a felony to knowingly drive, tow away, or take a car belonging
to another while having no right or reasonable belief in a right to
do so. On its face, this seems to include cases where the original
taking was nontrespassory but the defendant later drove the vehicle
without a right or reasonable belief in a right to drive the
vehicle. However, the legislature also enacted AS 11.46.365(a)(2)
second-degree vehicle theft which made it a misdemeanor to
retain a vehicle beyond the time specified in a written agreement
for so long a time that the retention became an unreasonable
deviation from the agreement. The enactment of section 365(a)(2)
indicates that the legislature must have intended for the "drives,
tows away, or takes" language in section 360(a) to refer to a
defendant's initial act of driving, towing away, or taking and
thereby to limit section 360(a) to cases where the original taking
was trespassory. Otherwise, there would be no need for the second-
degree vehicle theft statute; it would be subsumed into the first-
degree vehicle theft statute, and even those takings that fit under
section 365(a)(2) could be prosecuted as first-degree vehicle theft.
Accordingly, in first-degree vehicle theft cases, the State must
prove that the defendant's initial taking of the vehicle was
trespassory.
Here, VanZee testified that he gave Dobberke permission
to take the car to the bank, and the State conceded that Dobberke
had Van Zee's permission in its closing argument. Judge Cranston
instructed the jury as follows:
A person commits the crime of vehicle
theft in the first-degree if, having no such right to do so or any
reasonable ground to believe he had such a right, the person
knowingly drives, tows away or takes a car belonging to another.
In order to establish the crime of ...
vehicle theft in the first degree, it is necessary for the state to
prove beyond a reasonable doubt the following:
First, that the event in question occurred
at or near Kenai and on or about November 1998 through February
1999;
Second, that Donald R. Dobberke, having no
such right to do so or any reasonable ground to believe he had such
a right, did knowingly drive, tow away or take a car belonging to
another.
Although the jury instruction correctly quoted the statutory
language, the statutory language is misleading because, as stated
above, the legislature only intended for the first-degree vehicle
theft statute to apply to takings that were initially trespassory.
In this case, the judge should have specifically
instructed the jury that Dobberke's initial taking had to be
trespassory to convict Dobberke of first-degree vehicle theft.
Instead, the judge instructed the jury that it could find Dobberke
guilty of first-degree vehicle theft if it found that Dobberke drove
the car at any point between November and February when he did not
have a right to drive the car or any reasonable ground to believe
he had a right to drive the car. This jury instruction did not
require that the jury find Dobberke's initial taking trespassory
and, accordingly, the instruction was erroneous.
The State argues that the jury might have believed the
initial taking of the car was trespassory, and, therefore, there was
not a high likelihood that the jury followed an erroneous theory.
However, the prosecutor argued to the jury that it did not matter
that Dobberke had permission to take the car when he left with it
on November 3. Because the jury instructions did not impose a
requirement that Dobberke's initial taking be trespassory, and
because of the way this case was presented and argued to the jury,
we conclude there is a high likelihood that the jury convicted
Dobberke without finding that his initial taking of the Mercury was
trespassory. Under these facts, we conclude that the jury
instructions constituted plain error.
Is the first-degree vehicle theft statute vague or
overbroad?
Lastly, Dobberke claims the vehicle theft statute is
overbroad as applied to his case because it effectively criminalizes
failure to pay a debt. He argues that imprisonment for failure to
pay a debt is prohibited by article I, section 17 of the Alaska
Constitution. In addition, he claims the statute is vague because
it does not clearly inform individuals that their contractual
obligations can be subject to criminal prosecutions.
We reject Dobberke's argument that the statute is
overbroad. Alaska Statute 11.46.360(a) provides that "[a] person
commits the crime of vehicle theft in the first degree if, having
no right to do so or any reasonable ground to believe the person has
such a right, the person drives, tows away, or takes (1) the car ...
of another." However, as stated above, we now hold that individuals
can only be prosecuted for first-degree vehicle theft if the initial
taking was trespassory. The statute does not apply to mere failure
to pay a debt, and therefore, the statute is not overbroad.
Dobberke also argues that the statute is vague because a
person of ordinary intelligence would not realize AS 11.46.360(a)
applies to someone keeping a rental car too long. But our holding
resolves this issue because individuals cannot be convicted for
first-degree vehicle theft for keeping a rental car too long unless
their initial taking was trespassory. The statute is not
unconstitutionally vague.
Because we reverse Dobberke's conviction, we need not
consider his other claims.
Conclusion
The judgment of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
AS 11.46.360(a)(1).
Footnote 2:
AS 11.46.360(a)(1).
Footnote 3:
AS 11.46.100(1) & AS 11.46.130(a)(1).
Footnote 4:
AS 28.35.026.
Footnote 5:
996 P.2d 995 (Alaska App. 1998).
Footnote 6:
Id. At 996-98.
Footnote 7:
Id. at 966.
Footnote 8:
Id.
Footnote 9:
Id. at 998 (Mannheimer, J., concurring). See also Allridge
v. State, 969 P.2d 644, 646 (Alaska App. 1998).
Footnote 10:
See R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), pp.
303-07; W. LaFave and A. Scott, Substantive Criminal Law (1986),
sec.sec.
8.1(a) & 8.2(a), Vol. 2, pp. 333-36.
Footnote 11:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal v.
State, 657 P.2d 404, 405 (Alaska App. 1983).
Footnote 12:
Matter of Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)
(quoting Holiday Inns of Am., Inc. v. Peck, 520 P.2d 87, 91 (Alaska
1974)); Heaps v. State, 30 P.3d 109, 114 (Alaska App. 2001).
Footnote 13:
See Eppenger, 962 P.2d at 998 (Mannheimer, J., concurring).
