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Semancik v. State (10/17/2002) ap-1834
Semancik v. State (10/17/2002) ap-1834
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WAYNE W. SEMANCIK, )
) Court of Appeals No.
A-7286
Appellant, )
Trial Court No. 3PA-98-1485 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1834 October 17, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kim S.
Stone, 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.
COATS, Chief Judge, dissenting.
Wayne W. Semancik threatened his neighbors with a
firearm and broke a window of their house in an attempt to enter
the residence because he believed (falsely) that they had stolen
his dog. For this conduct, Semancik was indicted for attempted
first-degree burglary.1 But the indictment was flawed.
The crime of burglary consists of unlawfully entering
or remaining in a building with the intent to commit a crime.2
Forty years ago, in Adkins v. State, the Alaska Supreme Court
ruled that a burglary indictment must specify this intended
(ulterior) crime because it is an essential element of the
charge.3
Semanciks indictment did not specify his intended crime
(or any other element of burglary); instead, the indictment
simply alleged that Semancik inten[ded] to commit the offense of
Burglary in the First Degree [and] engage[d] in conduct which
constitute[d] a substantial step toward the commission of that
crime.
Semancik did not attack his indictment, seek a bill of
particulars, or otherwise raise this problem before or during his
trial. Based on the States evidence and the prosecutors
arguments, Semanciks attorney proceeded on the reasonable
assumption that the alleged ulterior crime was assault. The
defense attorney argued to the jury that Semanciks sole intention
was a lawful one (to retrieve his dog) and that Semancik had no
intention of committing assault (or any other crime) inside his
neighbors house.
The jury rejected this argument and convicted Semancik
of attempted burglary. Now, on appeal, Semancik points out the
flaw in the indictment and asks us to set aside his burglary
conviction.
In Adkins, the supreme court not only ruled that a
burglary indictment must specify the defendants intended crime,
but the court also ruled that a burglary indictment which fails
to specify the defendants intended crime is fatally flawed: it
fails to charge an offense within the meaning of Alaska Criminal
Rule 12(b)(2). This means that it is not too late for Semancik
to raise this issue.
Under Criminal Rule 12(b)(2) and (e), a defendant is
normally obliged to raise all [d]efenses or objections based on
defects in the indictment before trial, otherwise these
objections are forfeited. But Rule 12(b)(2) exempts two types of
objections from this time limit: objections based on the
indictments failure to show jurisdiction in the court or to
charge an offense. In Adkins, the supreme court held that a
burglary indictments failure to specify the defendants intended
crime is the type of problem that falls within this latter
exemption. Thus, a defendant is entitled to raise this objection
on appeal even though the defendant has gone to trial and has
been convicted and sentenced without ever bringing this issue to
the attention of the trial court.45
(Alaska Criminal Rule 12(b)(2) declares that such an
objection can be raised at any time during [the] pendency of the
proceeding. Arguably, this phrase could be read to require the
defendant to voice the objection before the end of the proceeding
in the trial court. Adkins does not specifically address this
point, but the result in Adkins is clearly contrary to such an
interpretation of Rule 12(b)(2). We note that the federal
courts, construing their equivalent rule, also take the position
that the phrase during the pendency of the proceeding includes an
appeal.6)
To summarize: under Adkins, the failure of Semanciks
indictment to specify his intended crime is a fatal defect in the
indictment, and Semancik is entitled to raise this objection for
the first time on appeal.
The State concedes that Adkins requires reversal of
Semanciks attempted burglary conviction, but the State asks us to
re-examine Adkins and modify Alaskas rule on this subject.
The States argument that Adkins was wrongly decided
The legal issue that our supreme court
confronted in Adkins has created a split in American
jurisdictions. Some states hold that a burglary
indictment is fatally flawed unless it specifies the
defendants intended crime. Other states hold that a
burglary indictment need not specify the defendants
intended crime or, alternatively, that a burglary
indictment should specify the intended crime but that
failure to specify this crime is a defect in form
rather than a fatal flaw.
As the Iowa Supreme Court recently explained
in State v. Mesch7, and as the Washington Supreme Court
earlier explained in State v. Bergeron8, this split can
generally be attributed to differences in the wording
of the states burglary statutes:
One of the elements of common-law
burglary was that the breaking and entering
be with the intent to commit a felony
therein. At common law[,] no indictment for
burglary was sufficient which failed to state
the facts necessary to show the particular
felony intended to be committed. Thus, at
common law, the indictment obviously had to
plead facts showing a felony was intended
because[,] if anything other than a felony
was intended[,] the breaking and entering did
not constitute burglary. So it is that those
states with burglary statutes which still
require an intent to commit a felony, or
intent to commit a felony or larceny, or
intent to commit other designated crimes, can
logically require that a specific intended
crime be alleged and proved. There is no
similar reason to require it in [a state]
where burglary is a statutory offense and
where [the] burglary statutes require only an
intent to commit any crime.
State v. Mesch, 574 N.W.2d at 13, quoting
State v. Bergeron, 711 P.2d at 1008.
Court decisions from around the
country tend to group themselves as described
in Mesch and Bergeron. In states where the
burglary statute requires proof that the
defendant intended to commit a particular
type of crime (e.g., a felony, an assault, or
a theft), a burglary indictment is fatally
flawed if it does not specify the defendants
intended crime.9 On the other hand, in
states where the burglary statute requires
the government to prove only that the
defendant intended to commit a crime, the
failure of the indictment to specify the
intended crime does not invalidate the
indictment. These decisions fall into two
groups: Some of them hold that a burglary
indictment need not specify the defendants
intended crime.10 Others hold that a
burglary indictment should specify the
defendants intended crime, but the failure to
specify the intended crime is not a fatal
flaw in the indictment. In other words, the
defendant must raise this objection in the
trial court (like other objections to the
indictment). If the issue is not raised
until appeal, the defendant must show plain
error generally, inability to anticipate the
States theory of prosecution and resulting
prejudicial surprise.11
The burglary statute at issue in
Adkins was former AS 11.20.080. Under this
statute, a person committed the offense of
burglary in a dwelling house if the person
br[oke] and enter[ed] a dwelling house with
intent to commit a crime in it.12 Because
Alaskas burglary statute did not require
proof that the defendant intended to commit a
felony, an assault, a theft, or any other
specific type of crime, one would have
expected the supreme court to decide Adkins
the other way. The State asserts that Adkins
indeed should have been decided the other way
that the supreme court mistakenly relied on
cases from other jurisdictions without seeing
that they were inapplicable. The State urges
us to revisit the issue decided in Adkins and
change Alaskas rule.
Three years ago, in People v.
Williams13, the Supreme Court of Colorado
engaged in just such a re-evaluation of
precedent. Colorados burglary and criminal
trespass statutes require proof that the
defendant committed the unlawful entry with
intent to commit a crime. The court had
previously held that an indictment for
burglary or trespass was fatally flawed if it
did not specify the defendants intended
crime.14 But after re-examining its statutes
and surveying the case law from other
jurisdictions, the Colorado court decided
that its prior decisions on this issue had
been wrong. Instead, the court held that a
burglary or trespass indictment should, as a
matter of form, specify the defendants
intended crime, but the failure of the
indictment to specify the intended crime is
not a substantive defect that voids the
indictment.15
The Colorado court relied on
reasoning similar to the analysis set forth
in Mesch and Bergeron16, as well as on the
modern trend away from technical rules of
pleading17 and the policy that a conviction
should not be overturned based on an
indictment defect that does not tend to
prejudice the substantial rights of the
defendant18 the same policy embodied in
Alaska Criminal Rule 7(c).
The State argues that even if we
think that a burglary indictment should
specify the defendants intended crime, we
should adopt an approach similar to the one
followed in Colorado and the other states
listed in footnote 11. That is, the State
asks us to declare that this defect is non-
fatal so that if a defendant does not file a
timely objection in the trial court, the
defendant would not be entitled to automatic
reversal of their conviction but would
instead have to show that their ability to
defend the change was substantially
prejudiced by the failure of the indictment
to specify the intended crime.
There is Alaska case law to support
this approach. In Lupro v. State, 603 P.2d
468 (Alaska 1979), and in Thomas v. State,
522 P.2d 528 (Alaska 1974), the Alaska
Supreme Court endorsed the rule that an
indictment should not be struck down merely
because it fails to recite every necessary
element of the crime, so long as the grand
jury record (potentially supplemented by a
bill of particulars) gives the defendant
sufficient notice of the charge to enable him
to prepare his defense and to permit him to
claim former jeopardy in the event that he is
later charged with the same offense.19 But
the supreme court did not apply this
reasoning in Adkins.
The State points out that the
Adkins rule allows a defense attorney to
purposely overlook an obvious defect in the
indictment if the defect appears inconsequen
tial to the attorneys trial preparation. For
example, even though a burglary indictment
may fail to specify the defendants intended
crime, there may be complete agreement
between the prosecution and the defense
attorney concerning what crime (or crimes)
the State thinks the defendant intended to
commit inside the building. In such
circumstances, the defense attorney will be
able to prepare the case just as fully as if
the indictment named the defendants intended
crime. But if the defense attorney stays mum
about the defect in the indictment, he or she
obtains a huge tactical advantage. Under
Adkins, the defense attorney can risk trial
and then, if the defendant is convicted, the
attorney can (in the States words) pull the
ace from his sleeve and present the [Adkins
objection] on appeal [even though] he
remained silent about [it] during trial.
The States arguments have
considerable force, but we are not the proper
audience. Adkins was based on our supreme
courts interpretation of Alaskas burglary
statute and Alaska Criminal Rule 12(b)(2).
Although both the statute and the rule have
been amended since 1964, these amendments do
not undermine the decision in Adkins. The
burglary statute still requires proof of the
defendants intent to commit a crime, and Rule
12(b)(2) still imposes no time limit on a
defendants ability to object to an indictment
on the ground that it fail[s] ... to charge
an offense. We have no authority to alter
the supreme courts resolution of this issue
of statutory construction.
Conclusion
Semanciks conviction for attempted burglary
is REVERSED and the corresponding count of his
indictment is DISMISSED. The State remains free
to reindict and retry Semancik if it wishes.
COATS, Chief Judge, dissenting.
The State charged Semancik with several
offenses, including one count of attempted burglary in
the first degree. A person commits burglary in the
first degree if he enters a dwelling with the intent to
commit a crime.1 Although it appears that the State
could have charged Semancik with a completed burglary
for breaking the window of his neighbors house and
putting his arm through the window,2 the States theory
was that this action constituted a substantial step
towards burglary and charged the offense as an
attempted burglary. In the indictment, the State never
specified what crime Semancik intended to commit when
he entered his neighbors house. But Semancik never
moved to dismiss the indictment or seek a bill of
particulars. Furthermore, Semancik did not object to
the courts jury instructions. From the record, it is
clear that the State alleged that the crime which
Semancik intended to commit was assault. Semancik
argued to the jury that his sole intention was to
retrieve his dog and that he had no intention of
committing an assault. The jury rejected this
argument.
Now, for the first time on appeal, Semancik
points out that the indictment did not specify that he
intended to commit an assault in the dwelling. He
relies on Adkins v. State,3 a case decided by the
Alaska Supreme Court nearly forty years ago. The State
concedes that Adkins appears to require this result but
argues that Adkins was wrongly decided.
As a lower court, we are bound by the
decisions of the Alaska Supreme Court. And given the
States position, I certainly respect my colleagues
decision concluding that Adkins is controlling. But we
do have a duty to review a concession by the State to
make sure that the concession is supported by the
record on appeal and has legal foundation.4 And
Adkins, as interpreted by Semancik, seems to me to be
contrary to supreme court decisions decided subsequent
to Adkins. For instance, in Lupro v. State5 and Thomas
v. State,6 the Alaska Supreme Court held that so long
as an indictment gives the defendant sufficient notice
of the charge to enable him to prepare his defense and
to be protected against double jeopardy, the indictment
is sufficient even if it does not set out every
necessary element of the crime.7
Furthermore, Alaska Criminal Rule 12(b)(2)
requires motions against an indictment to be made
before trial. The policy behind the rule is clear.
This case presents an excellent example. If Semancik
had pointed out the defect in the indictment before
trial, the prosecution could easily have cured the
problem. By not pointing out the problem in the
indictment, Semancik did not suffer any prejudice: it
was obvious that the State was charging him with
attempting to enter the neighbors dwelling with the
intent to commit an assault. By not objecting,
Semancik was able to go to trial on the attempted
burglary charge without risk. When the jury rejected
his defense, Semancik was able to have his conviction
reversed. This is obviously terrible policy. Case law
from other states with burglary statutes similar to
Alaska appears to universally recognize this. These
cases are set out on pages 5 to 9 of the majority
opinion. Some of these states hold that it is not
necessary in a burglary indictment to specify the
defendants intended crime. Other states, with statutes
similar to Alaskas, do hold that the indictment should
specify the intended crime. But even these states hold
that the failure to specify the crime is merely a
defect in the indictment, and the defendant must either
object or show plain error in order to prevail.
I therefore conclude that there is a
possibility that we are misreading Adkins. The Adkins
court may have concluded that Adkins might have been
prejudiced by the failure to specify the underlying
crime in the indictment, even though, in its opinion,
the court did not discuss prejudice. In the event that
Adkins actually did hold that a burglary indictment was
fatally flawed unless it specified the defendants
intended crime, I conclude that the force of that
decision is undermined by later supreme court cases
such as Lupro and Thomas. I certainly recognize that,
as a legal matter, my colleagues may be correct in
concluding that we are required to follow Semanciks
interpretation of Adkins. If this is the case, I do
not believe that Adkins would survive review by the
Alaska Supreme Court. Perhaps my dissent will serve in
some way to encourage this reexamination.
_______________________________
1 Semancik was indicted under two theories: AS
11.46.300(a)(1) (burglary of a dwelling) and AS
11.46.300(a)(2)(C) (using or threatening to use a dangerous
instrument while committing burglary).
2 See AS 11.46.310(a).
3 389 P.2d 915, 916 (Alaska 1964).
4 Adkins, 389 P.2d at 915-16.
5 Alaska Criminal Rule 12(b)(2) has been amended since
Adkins was decided, but the changes are not pertinent to this
appeal. The original version of the rule is contained in Supreme
Court Order No. 4 (October 4, 1959).
6 See United States v. Panarella, 277 F.3d 678, 682 (3rd
Cir. 2002) (We have squarely held that [Federal Criminal] Rule
12(b)(2) applies equally to ... objections raised [in the trial
court] and objections raised for the first time before a Court of
Appeals.); United States v. Smith, 223 F.3d 554, 571 (7th Cir.
2000) ([The defendant] makes his attack on the sufficiency of the
indictment for the first time on appeal. ... [I]t is clear that
he is entitled to do so, for [Federal Criminal Rule] 12(b)(2)
states that a defendant may raise at any time an objection that
the indictment fails to show jurisdiction or to charge an
offense, and such an objection shall be noticed by the court at
any time during the pendency of the proceedings. Here, [the
defendant] is arguing that the indictments failure to allege that
he took these acts knowingly and intentionally means that it
fails to charge an offense.); United States v. Gama-Bastidas, 222
F.3d 779, 785 (10th Cir. 2000) (allowing the defendant to
challenge his indictment for failure to charge a crime even
though the objection was raised for the first time at a re-
sentencing hearing in the trial court following an appeal);
United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997)
(same); United States v. Rosnow, 9 F.3d 728, 730 (8th Cir. 1993)
(same); Government of the Virgin Islands v. Pemberton, 813 F.2d
626, 631 (3rd Cir. 1987) (This court has interpreted [Federal
Criminal Rule] 12(b)(2) to mean that an objection to an
information on the ground that it fails to charge an offense may
be raised for the first time on appeal.).
7 574 N.W.2d 10 (Iowa 1997).
8 711 P.2d 1000 (Wash. 1985).
9 See Commonwealth v. Walter, 661 N.E.2d 942, 944 (Mass.
App. 1996) (construing a burglary statute that requires
proof of the defendants intent to commit a felony);
State v. Linn, 840 P.2d 1133, 1138 (Kan. 1992)
(construing a burglary statute that requires proof of
the defendants intent to commit a felony); People v.
Palmer, 404 N.E.2d 853, 857 (Ill. App. 1980)
(construing a burglary statute that requires proof of
intent to commit therein a felony or theft); People v.
Failla, 414 P.2d 39, 41-42 (Cal. 1966) (construing a
burglary statute that requires proof of intent to
commit theft or any felony); State v. Allen, 119 S.E.
504, 506 (N.C. 1923) (construing a burglary statute
that requires proof of the defendants intent to commit
a felony) (superseded by statute as held in State v.
Worsley, 443 S.E.2d 68, 73 (N.C. 1994)).
Semancik cites one case in his reply brief, Lanier v. State,
733 So.2d 931 (Ala. Crim. App. 1998), that is, at first
blush, contra. In Lanier, the court held that an
indictment must specify the defendants intended crime
even though the burglary statute at issue required only
proof of intent to commit a crime. But the Lanier
court relied on a line of decisions Coleman v. State,
443 So.2d 1355, 1358 (Ala. Crim. App. 1983); Cliatt v.
State, 348 So.2d 509, 512 (Ala. Crim. App. 1977); and
Behel v. State, 122 So.2d 537, 538 (Ala. Crim. App.
1960) that all dealt with a differently worded
burglary statute: one that required proof that the
defendant acted with intent to commit theft or a
felony. The Lanier court showed no awareness that
these prior cases might not apply to a statute that
only required proof of the defendants intent to commit
a crime. This is probably because this issue was not
litigated. The defendant in Lanier did not challenge
the wording of the indictment on appeal; rather, the
Alabama court noted this jurisdictional defect on its
own motion. See Lanier, 733 So.2d at 935.
10See State v. Robinson, 673 A.2d 1372, 1375 (N.J. App.
1996) (holding that New Jerseys burglary statute, which
requires proof that the unlawful entry was accomplished
with purpose to commit an offense, did not require the
state to specify the defendants intended offense);
Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994)
(holding that Pennsylvanias burglary statute, which
defines the offense as an unauthorized entry with the
intent to commit a crime after entry, did not require
the state to specify the crime that the defendant
intended to commit after entry); People v. Mahboubian,
543 N.E.2d 34, 44 (N.Y. 1989) (citing People v. Mackey,
401 N.E.2d 398, 400 (N.Y. 1980)) (In order to secure a
conviction for burglary, the People need only allege
and prove a knowing and unlawful entry coupled with an
intent to commit a crime therein. There is no
requirement that the People allege or establish what
particular crime was intended[.] (emphasis in the
original)).
11See State v. Frazier, 652 N.E.2d 1000, 1009 (Ohio 1995)
(even though an indictment for aggravated burglary
failed to specify the felony intended in the burglary,
there was no plain error because the other counts in
the indictment apprised the defendant of what he was
indicted for and needed to defend against, and because
the state did not put on evidence of any felony other
than those charged in the several counts of the
indictment); State v. Worsley, 443 S.E.2d 68, 74 (N.C.
1994) (failure of a burglary indictment to specify the
defendants intended crime is not a fatal defect
because, through discovery and (if necessary) a bill of
particulars, defendants will be able to adequately
inform themselves of the nature of the charge); State
v. Skelton, 795 P.2d 349, 359 (Kan. 1990) (although a
burglary indictment is defective in form unless it
specifies the defendants ulterior crime, this defect
does not automatically result in prejudicial error);
State v. Waters, 436 So.2d 66, 68-69 (Fla. 1983)
(holding that, in light of Floridas broad reciprocal
discovery rules, [s]pecification of the offense
intended is not so essential a part of the intent
element as to require that it always be set out in the
charging document.).
12This former burglary statute is quoted in full in
footnote 2 of Donlun v. State, 527 P.2d 472, 473
(Alaska 1974).
13984 P.2d 56, 58 (Colo. 1999).
14See Gomez v. People, 424 P.2d 387, 388 (Colo. 1967);
Martinez v. People, 431 P.2d 765, 767 (Colo. 1967).
15Williams, 984 P.2d at 61, 65.
16See id. at 61-63.
17See id. at 60.
18See id. at 64.
19Lupro, 603 P.2d at 472-73; Thomas, 522 P.2d at 530.
1 AS 11.46.300; AS 11.46.310.
2 Sears v. State, 713 P.2d 1218, 1220 (Alaska App. 1986).
3 389 P.2d 915 (Alaska 1964).
4 Marks v. State, 496 P.2d 66, 68 (Alaska 1972).
5 603 P.2d 468 (Alaska 1979).
6 522 P.2d 528 (Alaska 1974).
7 Lupro, 603 P.2d at 472-73; Thomas, 522 P.2d at 530.
