Alaska Case Law
SIMPSON v. STATE, A-8937 (Alaska App. 12-13-2006) HEATHER
A. SIMPSON, Appellant, v. STATE OF ALASKA, Appellee. Court
of Appeals No. A-8937. Court of Appeals of Alaska.
December 13, 2006.
Appeal from the Superior Court, First Judicial District,
Ketchikan, Michael A. Thompson, Judge, Trial Court No.
1KE-04-202 Cr.
Michael J. Zelensky, Ketchikan, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and David W.
M??rquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MEMORANDUM OPINION
MANNHEIMER, Judge.
Heather A. Simpson and her boyfriend, Levi Graham, broke
into a friend’s residence and stole electronic equipment,
food, and cigarettes. Based on this conduct, Simpson was
charged with first-degree burglary and third-degree theft
(theft of property valued at $50 or more).[fn1]
At Simpson’s trial, Levi Graham testified that he had
committed these crimes by himself — that Simpson had
no role in this episode. However, the State introduced
evidence that Simpson, during a pre-trial interview with
the police, had confessed to breaking into her friend’s
residence and stealing food and cigarettes —
although she denied stealing the electronic equipment.
Based on the content of Simpson’s interview with the
police (specifically, her confession that she stole the
food and cigarettes, but her denial that she stole the
electronic equipment), the State asked the trial judge to
instruct the jury on the lesser offense of fourth-degree
theft — i.e., theft of property valued at less than
$50.[fn2] Over the objection of Simpson’s attorney, the
trial judge granted the State’s request. The jury
ultimately convicted Simpson of burglary and of this lesser
degree of theft.
Simpson now appeals her convictions on several grounds.
First, Simpson argues that the evidence presented at her
trial was insufficient to support the jury’s finding that
she participated in the burglary. But Simpson’s argument is
based on an interpretation of the evidence in the light
most favorable to herself, and on the assertion that the
evidence supporting the State’s case was unconvincing and
unworthy of belief. When an appellate court assesses the
sufficiency of the evidence to support a jury’s verdict,
the court must view the evidence, and all inferences that
could rationally be drawn from that evidence, in the light
most favorable to upholding the verdict.[fn3] When we view
the evidence presented at Simpson’s trial in this light, we
conclude that it was sufficient to convince reasonable
jurors, beyond a reasonable doubt, that Simpson committed
the burglary.
Simpson next argues that the evidence was insufficient to
support the jury’s finding that she committed fourth-degree
theft by stealing food and cigarettes. Simpson asserts that
“it is unclear that food or cigarettes were missing” from
the residence. Again, however, Simpson’s argument depends
on viewing the evidence in the light most favorable to
herself. Viewing the evidence in the light most favorable to
the jury’s verdict, it was sufficient to support the
conclusion that food and cigarettes were stolen.
Simpson argues in the alternative that, even if the
evidence was sufficient to support a finding that she stole
food and cigarettes from the residence, these items have
“no value” — and, thus, the taking of these items
can not constitute the crime of theft. We reject this
contention.
Under AS 11.46.100(1), “theft” is the obtaining of another
person’s property with the intent to deprive the other
person of the property or to appropriate the property for
oneself or a third person. “Property” is defined in AS
11.81.900(b)(51) as “an[y] article, substance, or thing of
value”. And AS 11.46.980(a) establishes the general rule
that, for purposes of the theft statutes, property will be
valued at its “market value . . . at the time and place of
the crime”.
Although small amounts of food and small quantities of
cigarettes may have only a small market value, these items
are not valueless. That is, they are “property” under
Alaska law. Hence, the unlawful taking of these items, if
accompanied by the requisite culpable mental state (intent
to deprive or appropriate), constitutes theft.
For these reasons, the evidence presented at Simpson’s
trial was sufficient to support her conviction for theft.
Next, Simpson argues that, under the facts of her case, the
lesser offense of fourth-degree theft was not properly
included within the charge of third-degree theft, and thus
the trial judge should not have instructed the jury on
fourth-degree theft.
Simpson’s argument rests on the underlying assertion that,
even though the electronic equipment, the food, and the
cigarettes were all stolen from the same residence during
the same burglary, the theft of the electronic equipment
was actually a separate offense from the theft of the food
and cigarettes. In other words, Simpson argues that if,
during a burglary, the burglars steal several separate
items, the taking of each separate item constitutes a
separate theft.
Alaska law codifies a different rule. Under AS
11.46.980(c), when the issue is to determine the degree of
a theft, “amounts involved in criminal acts committed under
one course of conduct, whether from the same person or
several persons, shall be aggregated”.
Here, various items of property — three items of
electronic equipment, as well as food and cigarettes
— were stolen during a single burglary. According to
the probable cause statement supporting the original
criminal complaint, these items had an aggregate value of
$315. Because the aggregate value of the property equaled
or exceeded $50, the State charged Simpson with
third-degree theft.
In her statement to the police, Simpson acknowledged that
she broke into the residence and stole the food and
cigarettes, but she denied stealing the three pieces of
electronic equipment. If the jury believed this, and if the
value of the food and cigarettes alone was less than $50,
then the proper verdict was the lesser offense of
fourth-degree theft.
Simpson argues that the aggregation-of-value statute, AS
11.46.980(c), does not apply to the theft of several items
during one burglary, but rather applies only to situations
where a person commits a series of thefts at different
times and places. But this suggested interpretation of the
statute would defeat the legislative policy behind the
statute. The point of the statute is to establish (or
clarify) the rule that acts of theft committed during a
single course of conduct will not be viewed as a series of
individual thefts, but rather will be viewed as one
continuing theft.
The rule codified in this statute is related to the
common-law “single larceny” doctrine: the rule that the
taking of property belonging to different owners at the
same time and place constitutes but one larceny.[fn4] It is
also related to our supreme court’s holding in Nelson v.
State, 628 P.2d 884 (Alaska 1981), that a person commits
only one act of receiving stolen property if, on a single
occasion, the person takes possession of a quantity of
property that has been stolen from different owners. Id. at
897.
Applying this same principle, AS 11.46.980(c) calls for
the aggregation of property stolen during a single
burglary. If, as in Simpson’s case, the State charges a
defendant with third-degree theft for stealing a quantity
of property worth more than $50, and if the defendant
presents evidence that they stole only a portion of this
property, and that this portion was worth no more than $50,
then it is proper for the jury to consider the lesser
charge of fourth-degree theft.
Simpson argues that allowing the jury to find her guilty
of fourth-degree theft for stealing the food and cigarettes
constitutes a “fatal variance” from the original charge of
third-degree theft. According to Simpson, the third-degree
theft charge encompassed only the theft of the pieces of
electronic equipment, and that this charge “by its terms
did not purport to charge Simpson with theft of [the] food
and [the] cigarettes”.
But contrary to Simpson’s assertion, the wording of the
third-degree theft complaint did not specify the items of
property encompassed within that charge; rather, the
complaint referred only to property having a value of $50
or more. Accordingly, the charge of fourth-degree theft did
not constitute a “variance” from the charge of thirddegree
theft contained in the complaint.
The probable cause statement that accompanied the
complaint did identify the property that was stolen. But
this probable cause statement expressly referred to all of
the property stolen during the burglary (the three pieces
of electronic equipment, the food, and the cigarettes), and
it declared that “the total value of items taken is
$315.00”. Thus, Simpson was clearly on notice that the State
believed that Simpson stole food and cigarettes during the
burglary.
For these reasons, we reject Simpson’s argument that the
jury should not have been instructed on the lesser offense
of fourth-degree theft.
Finally, Simpson points out that, because her convictions
rested in part on the content of her out-of-court police
interview, the State was obliged to satisfy the corpus
delicti rule. Simpson argues that the evidence presented at
her trial fails to satisfy this rule because it fails to
provide credible corroboration of her participation in the
burglary / theft.
There are two flaws in Simpson’s argument. First, her
argument again rests on a view of the evidence in the light
most favorable to herself. Viewing the evidence as a whole
in the light most favorable to the jury’s verdict, there
was credible evidence establishing Simpson’s role in these
crimes.
But more important, the corpus delicti rule does not
require corroboration of a person’s participation in a
crime. Rather, the corpus delicti rule requires
corroboration that the crime occurred. We explained this in
Dodds v. State, 997 P.2d 536, 538-39 (Alaska App. 2000):
“While corpus delicti requires independent evidence that
the charged crime occurred, it does not require independent
evidence that the defendant participated in that crime.”
Thus, whatever weakness there may have been in the State’s
evidence tending to prove Simpson’s participation in the
burglary / theft, this would not raise an issue under the
corpus delicti rule.
The judgement of the superior court is AFFIRMED.
[fn1] AS 11.46.300(a)(1) and AS 11.46.140(a)(1),
respectively.
[fn2] AS 11.46.150(a).
[fn3] See, e.g., Shafer v. State, 456 P.2d 466, 469 (Alaska
1969); Ritter v. State, 97 P.3d 73, 75 (Alaska App. 2004);
Tipikin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003).
[fn4] See Nelson v. State, 628 P.2d 884, 896 n. 15 (Alaska
1981).