Opinion
Court of Appeals No. A-9900.
March 18, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, John E. Suddock, Judge, Trial Court No. 3AN-05-11642 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted David P. Brockman of vehicle theft in the first degree after he took a truck for a test drive and did not return it for nine days. Brockman appeals, arguing that Superior Court Judge John E. Suddock erred by not instructing the jury that it could not convict him unless it found that his initial taking of the truck was "trespassory." We conclude that the jury instructions, coupled with the parties' final arguments, adequately conveyed to the jurors that they could not convict Brockman unless they found that his initial taking of the truck was fraudulent, and thus trespassory.
AS 11.46.360(a)(1).
Brockman also argues that Judge Suddock committed plain error when he failed to instruct the jury that it could not infer that Brockman did not intend to return the truck when he took it for a test drive solely from the fact that he did not return the truck as agreed. We conclude that Brockman has not shown plain error.
Lastly, Brockman argues that the State did not present enough evidence to convict him of first-degree vehicle theft. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence for a fair-minded juror to conclude beyond a reasonable doubt that Brockman committed fraud by obtaining permission to take the truck for a short test drive when he actually intended to keep it for days. We accordingly affirm Brockman's conviction.
Factual and procedural background
On December 6, 2005, Brockman visited Alaska Pacific Leasing, a company that leases and sells trucks and other heavy equipment. An employee, Thorn Ebrecht, greeted Brockman. Brockman told Ebrecht he was in the market for a new truck, and he indicated he was interested in a 2004 GMC pickup. Brockman discussed financing terms with Ebrecht. Then Brockman asked to test drive the truck up O'Malley Road and back. Ebrecht photocopied Brockman's driver's license and then gave him the keys to the truck so he could take it for a test drive. Brockman drove away in the truck.
After about thirty minutes, Ebrecht became concerned because Brockman had not yet returned with the truck. Ebrecht called Shannon Hicks, the general manager. Hicks asked Ebrecht whether Brockman's car was still there. Ebrecht told her there was a black sedan in the lot that might be Brockman's. Hicks advised Ebrecht to keep an eye on the sedan and to keep her informed. Hicks thought Brockman might have decided to take the truck to a mechanic to have it checked out before deciding whether to purchase it. About thirty minutes later, Ebrecht again called Hicks, telling her the black sedan he thought was Brockman's was no longer in the parking lot. Hicks came over to the car lot, did an inventory, and then called the police. Ebrecht went to the address listed on Brockman's driver's license but he did not find Brockman or the truck there.
Eight days later, on December 14, 2005, Alaska Pacific Leasing ran an advertisement in the newspaper and on the radio reporting the truck missing and offering a reward for the return of the truck. On the evening of December 15, the truck was found parked outside the locked gate of Alaska Pacific Leasing. The truck was slightly damaged, had trash inside, and had three thousand additional miles on it.
Brockman was charged with vehicle theft in the first degree. At his trial, the State presented four witnesses: Ebrecht, Hicks, and two police officers who investigated the case. At the close of the State's case, Brockman made a motion for a judgment of acquittal, arguing that the State had failed to prove that his initial taking of the vehicle was trespassory or fraudulent. Judge Suddock denied the motion, concluding that reasonable jurors could conclude that Brockman's initial taking of the truck was fraudulent because he acted "without intent to return the vehicle."
In closing argument, Brockman argued that because he left a copy of his driver's license when he took the truck, and because he ultimately returned the truck, the State had not shown that he intended to steal the truck at the time he obtained permission to take it for a test drive. He argued that there was simply "a misunderstanding between [him] and Pacific Leasing." The jury convicted Brockman. Brockman appeals.
Brockman's claim that Judge Suddock erroneously instructed the jury on the element of trespassory taking
Alaska Statute 11.46.360(a) provides that a defendant commits vehicle theft in the first degree when the defendant knowingly drives or takes the vehicle of another while having no reasonable belief that he has a right to do so.
AS 11.46.360(a).
In Dobberke v. State, we held that this statute requires the State to prove "that the defendant's initial taking of the vehicle was trespassory." We also held in Dobberke that "one who fraudulently obtains possession of property has committed a trespassory taking."
40 P.3d 1244, 1247 (Alaska App. 2002).
Id.; see also Eppenger v. State, 966 P.2d 995, 998 (Alaska App. 1998) (Mannheimer, J., concurring).
In this case, Brockman had permission to drive the truck off the lot. Therefore, to prove that Brockman committed vehicle theft in the first degree, the State had to prove that Brockman's initial taking of the vehicle was accomplished by fraud — that is, that Brockman fraudulently obtained Ebrecht's permission to take the truck.
See id.
Judge Suddock instructed the jury that, to prove Brockman's guilt of first-degree vehicle theft, the State had to prove that Brockman (1) "knowingly drove or took the truck of another," and that he (2) "obtained the right to initially drive or take the truck away by deception." Judge Suddock defined "deception" as "to knowingly promise performance, expressly or implicitly, that the defendant does not intend to perform."
Brockman objected to this instruction. Relying on Dobberke, he asked Judge Suddock to instead instruct the jury that it must find that his initial taking of the truck was "trespassory." Judge Suddock rejected Brockman's proposed instruction, concluding that the court's instruction addressed the trespassory element by telling the jury that it could not convict Brockman unless it found that he "obtained the right to initially drive or take the truck away by deception." In Judge Suddock's view, if the defendant initially obtained the right to drive the truck by deception, the taking was fraudulent, and therefore, under Dobberke, trespassory.
On appeal, Brockman renews his claim that Judge Suddock erred by not instructing the jury that it had to find that his initial taking was "trespassory." The State argues that Judge Suddock's instructions were not erroneous because the instructions "made clear that the initial taking of the vehicle had to be trespassory."
We conclude that the court's instructions, when coupled with the final arguments of the parties to the jury, were adequate to inform the jurors that they could not convict Brockman unless they found that his initial taking of the truck was trespassory — that is, that Brockman falsely represented to Ebrecht that he was going to take the truck for a short test drive when he actually intended to use the truck for a substantially longer period of time.
As noted above, Judge Suddock instructed the jury that it had to find that Brockman "obtained the right to initially drive or take the truck away by deception." He also told the jury that "deception" meant that Brockman promised "performance" that he did not intend to perform. The jury instructions therefore told the jury that, to find Brockman guilty, it had to find that Brockman initially obtained the truck by promising to return the truck in a reasonable period of time, when in fact he did not intend to do so.
Emphasis added.
The final arguments of the parties further clarified the jury instructions. Brockman's attorney correctly told the jury that, to convict Brockman, it had to find that when he first obtained the truck "he intended at that moment to deprive [Alaska Pacific Leasing] of the truck." The attorney told the jurors that the evidence was insufficient to convict Brockman if they found that it was possible that he took the truck and, intending to take it for a test drive, "decided he really liked it, and then decided to keep it."
See Buckwalter v. State, 23 P.3d 81, 87 (Alaska 2001) (noting that "the arguments of the parties can cure flaws or omissions in the jury instructions").
Although the prosecutor's closing argument was less clear, she articulated the State's theory that Brockman had obtained the truck by fraud: "[Brockman] told Mr. Ebrecht he was going on a test drive to get permission to take [the truck], and he had no intention to bring it back." She added: "This wasn't a misunderstanding. He went in there, he tricked them, and he took their car."
We conclude that Judge Suddock's jury instructions and the parties' arguments to the jury, read together, adequately informed the jury that, to convict Brockman, it had to find that the initial taking of the truck was accomplished by fraud. Brockman's claim that Judge Suddock committed plain error when he failed to instruct the jury on AS 11.46.180(b)
As discussed earlier, Judge Suddock told the jury that it could not convict Brockman of first-degree vehicle theft unless it found that he obtained the right to take the truck "by deception." Judge Suddock defined "deception" in accordance with the definitions section of Title 11. This is the same definition used in AS 11.46.180, the theft by deception statute. For this reason Brockman argues, for the first time on appeal, that Judge Suddock should have instructed the jury on the proof element in subsection (b) of the theft by deception statute, which provides:
AS 11.81.900(18)(E).
AS 11.46.180(c).
In a prosecution based on theft by deception, if the state seeks to prove that the defendant used deception by promising performance which the defendant did not intend to perform or knew would not be performed, that intent or knowledge may not be established solely by or inferred solely from the fact that the promise was not performed.
Because Brockman never asked the trial court to give this jury instruction, he must establish plain error.
See Mooney v. State, 105 P.3d 149, 155 (Alaska App. 2005).
According to the Commentary on the Alaska Revised Criminal Code, the purpose of AS 11.46.180(b) is "[t]o insure that the criminal courts are not swamped with cases which should be treated as civil breach of contract claims." Therefore, "subsection (b) requires that the deception be established by more than a mere showing that the defendant's promise was not kept."
Senate Journal Supp. No. 47 at 35-37, 1978 Senate Journal 1399.
Id.
There is no parallel language in the statute criminalizing first-degree vehicle theft. Brockman has not argued, as a policy matter, that the same considerations that motivated the legislature to add this proof element to the theft by deception statute apply to a fraudulent, trespassory taking under the first-degree vehicle theft statute. Nor has he cited any cases or statutes suggesting that Alaska or other jurisdictions have imposed this proof requirement in vehicle theft cases. We therefore find no plain error, and do not decide the underlying question of whether the additional proof element in the theft by deception statute is required in first-degree vehicle theft cases.
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
In any event, Brockman has not shown prejudice. The jury had more evidence of Brockman's fraudulent intent than merely his failure to return the truck after a short test drive — it also had evidence of the manner in which he obtained, used, and eventually returned, the truck. In Dobberke, the defendant rented a car and paid to extend that rental agreement several times before finally disappearing with the car. In this case, by contrast, Brockman got permission to take the truck for the fifteen to twenty minutes it would take to drive up O'Malley Road and back; he then kept the truck for nine days and drove it three thousand miles, damaged it, and returned it anonymously after it was advertised as stolen. We think it unlikely the jury ignored these surrounding circumstances and inferred Brockman's fraudulent intent solely from his failure to return the truck after a test drive as agreed. Therefore, even assuming the proof element in subsection (b) of the theft by deception statute applies in this case, we find no plain error.
See Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001); Nelson v. State, 927 P.2d 331, 334 (Alaska App. 1996).
Dobberke, 40 P.3d at 1245.
Brockman's motion for judgment of acquittal
Brockman also contends that there was insufficient evidence to convict him of first-degree vehicle theft because there was undisputed evidence at trial that he had permission to take the vehicle.
A defendant is entitled to a judgment of acquittal if the evidence, viewed in the light most favorable to the jury's verdict, is insufficient to prove the defendant's guilt beyond a reasonable doubt. Viewing the evidence in this light, a fair-minded juror could reasonably conclude that Brockman committed fraud by convincing Ebrecht that he intended to take the truck for a fifteen-or twenty-minute test drive when he actually intended to use the truck for his own purposes for a substantially longer period. We therefore conclude that there was sufficient evidence to support Brockman's conviction, and that Judge Suddock properly denied Brockman's motion for judgment of acquittal. Conclusion
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
The judgment of the superior court is AFFIRMED.