Judge MANNHEIMER.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
Trial Court No. 3AN-10-10576 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Gregory Miller, Judge. Appearances: Jane B. Martinez, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.

In August 2010, Randall G. Soellner went to a check-cashing store in Anchorage and attempted to cash a stolen and forged personal check in the amount of $285. Based on this conduct, Soellner was prosecuted for three crimes: second-degree forgery (forgery of a negotiable instrument), second-degree theft (theft of an access device), and attempted third-degree theft (attempt to obtain $285).

A jury found Soellner guilty of all three charges, and the superior court ultimately convicted him of one merged count of second-degree forgery (based on all three guilty verdicts). Soellner received a sentence of 3 years to serve.

In this appeal, Soellner argues that the evidence presented at his trial was legally insufficient to support the jury's verdicts. Specifically, Soellner argues that the evidence was insufficient to establish that he knew, when he presented the check, that the check was stolen and forged.

Soellner also argues that, at sentencing, the superior court improperly rejected his proposed mitigating factor that his conduct was among the least serious within the definition of forgery and theft.

For the reasons explained in this opinion, we reject both of Soellner's claims, and we therefore affirm his conviction and sentence.

Why we conclude that the evidence is sufficient to support Soellner's convictions

Because the issue here is the sufficiency of the evidence, we recite the evidence in the light most favorable to upholding the jury's verdicts.

On August 2, 2010, Soellner entered Alaska Check Cashing and asked the teller to cash a personal check for him. The check was drawn on the account of Jennifer Tinsman at the Bank of America in the amount of $285. Tinsman's printed phone number on the check was crossed out, and another phone number was written near it. Soellner was listed as the payee, and a notation on the check said that it was for "plumbing".

Tinsman's purse and checkbook had been stolen from her truck either one or two days before. Tinsman did not witness the theft, but she testified that the theft occurred during the preceding weekend — i.e., either on Saturday, July 31st or Sunday, August 1st.

While attempting to cash the check, Soellner told the teller, Mary Lemings, that he had "verified the check" and that "[the check] was good." Lemings interpreted this to mean that Soellner had contacted the Bank of America and had verified that Tinsman's account held sufficient funds to cover the check. Lemings found Soellner's statement odd because, according to her knowledge, the Bank of America's privacy policy did not allow the Bank to provide this information to anyone other than the account holder.

Soellner produced photo identification, and Lemings made a copy of the check and Soellner's ID. She then attempted to contact Tinsman. When Lemings was unable to reach Tinsman, she told Soellner that she could not cash the check. Soellner then left the store.

Tinsman testified that she did not know Soellner, she had never hired him to do plumbing work, and she had not written out a check to him. She also testified that the signature on the check was not hers. In addition, she testified that the phone number printed on the check was her correct phone number, and that she was not the one who crossed out that phone number and wrote another number on the check.

As Soellner points out in his brief, the State presented no witness who observed the theft of Tinsman's purse and checkbook from her truck, no witness who saw the check being forged, and no witness who could testify from personal knowledge that Soellner knew of the theft and the forgery. Rather, the State's case rested on circumstantial evidence. But under Alaska law, a verdict can rest on circumstantial evidence, so long as the reasonable inferences from that evidence are sufficient to convince fair-minded jurors that the State has proved its allegations beyond a reasonable doubt.

Here, viewing the evidence in the light most favorable to the verdict, Soellner tried to cash a check which had been stolen and forged within the preceding two days. In an effort to persuade the teller that the check was genuine, Soellner lied to the teller — falsely telling her that he had contacted the Bank of America, and that the Bank had assured him that Tinsman's account held sufficient funds to cover the check. Given the circumstances here, the jury could reasonably conclude, beyond a reasonable doubt, that Soellner knew the check was stolen and forged. The evidence is therefore sufficient to support the jury's verdicts.

The superior court's rejection of Soellner's proposed mitigating factor

Under AS 12.55.155(d)(9), a felony offense is mitigated if the defendant's conduct was among the least serious within the definition of the offense. At Soellner's sentencing, he asked the superior court to find that mitigator (d)(9) applied to his second-degree theft conviction (but not his forgery conviction) because the stolen and forged check was written in the amount of $285. Soellner asserted that his conduct should be viewed as mitigated because this amount is well below the $500 threshold that defines second-degree theft under AS 11.46.130(a)(1).

But Soellner was not charged with second-degree theft under subsection (a)(1) of the statute (i.e., stealing property worth $500 or more). Instead, Soellner was charged with second-degree theft under subsection (a)(7) — stealing an access device (i.e., a blank check).

When the check was stolen, it had no amount written on it. Presumably, when the legislature categorized the theft of access devices as second-degree theft, they did so, not because access devices have some large intrinsic value in and of themselves, but rather because access devices can potentially be used to steal large amounts of money.

The fact that Soellner (or an accomplice) later chose to write the check in the amount of $285 was particularly relevant to the attempted third-degree theft count — for that is the count that covered Soellner's effort to obtain money by presenting the forged check to the check-cashing business. This act was charged as attempted third-degree theft because $285 is in the middle of the $50 to $500 range that defines third-degree theft under AS 11.46.140(a)(1).

But the fact that Soellner (or an accomplice) later filled out the check for $285 had less relevance to the charge of second-degree theft under AS 11.46.130(a)(7), because that charge covered the earlier act of stealing the blank check from the victim's vehicle in the first place.

It is true that this check was filled out for a relatively modest amount of money. But Soellner (who bore the burden of proof on this mitigator) presented no other evidence regarding the circumstances under which he received the check, whether he was the one who filled out the check, why that particular amount was chosen, and whether he had access to the other stolen checks. Thus, it was possible that the check was written for a relatively small amount because Soellner thought this would allow him to more easily pass the check. It was also possible that Soellner had access to the remainder of the stolen checks, and that he was preparing to write other checks for larger amounts if he was successful in passing this check.

On appeal, Soellner suggests that the superior court's ruling on this proposed mitigator was flawed because the court seems to have relied primarily on the fact that Soellner had a lengthy criminal record — a factor apart from the conduct involved in Soellner's offense. We agree that the superior court's comments are problematic, but we conclude that any problem with the court's analysis is moot.

When we review a sentencing judge's ruling on mitigator (d)(9), we defer to the sentencing judge's findings of fact, but then we independently determine whether those facts are among the least serious within the definition of the crime.

Thus, the issue presented here is whether, given the fact that this particular check was written for $285, but also given the number of unknown factors that we described two paragraphs ago, Soellner proved by clear and convincing evidence that his conduct was among the least serious within the definition of the offense set out in AS 11.46.130(a)(7). On that issue, we do not defer to the sentencing judge. And we conclude that the facts of this case do not establish mitigator (d)(9).

Accordingly, even if there was a flaw in the sentencing judge's legal analysis, that flaw is now irrelevant.

Conclusion

The judgement of the superior court is AFFIRMED.