Opinion
Court of Appeals No. A-11923 No. 6596
03-07-2018
MICHAEL ANTHONY ROBERTS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Aaron C. Peterson, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
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-12-6711 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Aaron C. Peterson, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
While Michael Anthony Roberts was on bail release, he cut off his ankle monitor, destroying it in the process. For this conduct he was convicted of third-degree criminal mischief and violation of conditions of release.
AS 11.46.482(a)(1) and former AS 11.56.757(b)(2) (2012), respectively.
On appeal, Roberts challenges the sufficiency of the evidence to support his conviction for criminal mischief. Roberts argues that, because he posted a security deposit to cover loss or damage of the monitoring device, and because this security deposit was greater than the value of the device, he could reasonably have believed that his act of destroying the ankle monitor was effectively a "purchase" of the device, making him the owner of the property. Thus, Roberts contends, he could have reasonably believed that the ankle monitor was no longer the property of another within the meaning of the criminal mischief statute.
We find that reasonable jurors could have concluded that the language of the contract between Roberts and the monitoring company was inconsistent with a conclusion by Roberts that he had a right to destroy the monitoring device. Thus, sufficient evidence supported his conviction for criminal mischief.
Roberts also argues that the sentencing court erred in rejecting his proposed statutory mitigator: that his conduct was among the least serious included within the definition of the offense. Roberts suggests that his conduct was among the least serious because his security deposit was more than the actual value of the monitoring device, and thus the monitoring company actually profited when he destroyed the ankle monitor and thereby forfeited the security deposit. But Roberts ignores the fact that, while the monitoring company might have been made whole, another victim was not—the person who lent him the money to post the security deposit. And Roberts failed to explain the circumstances of his crime, including his motivation to remove the monitor and his conduct after he did so. We accordingly uphold the superior court's rejection of this mitigator.
AS 12.55.155(d)(9).
Background facts
While Roberts was incarcerated on unrelated misdemeanor charges, the court granted him bail release to a third-party custodian. The court also required Roberts to wear an ankle monitor.
To comply with this requirement, Roberts contracted with Alaska Pretrial Services ("APS"), a private company, to provide the ankle monitor and associated services for $600 per month. Based on Roberts's background, APS considered him to be a high flight risk, so it required a larger-than-normal security deposit. A friend of Roberts posted this security deposit in the amount of $3000.
Dennis Johnson, APS owner and program director, served as Roberts's case officer. One night, the APS dispatch center called Johnson after someone cut a wire securing Roberts's ankle monitor. Johnson went to Roberts's third-party custodian's residence and found the monitor lying outside on a tarp. The third-party custodian was asleep, and Roberts had fled. Alaska State Troopers apprehended him six days later.
The evidence suggested that Roberts cut off the ankle monitor using a high-speed grinder with a hardened bit. In the process, he destroyed the monitor. The cost to replace the monitor was $1205, a cost more than covered by the security deposit, which APS retained.
At trial, Roberts's defense attorney conceded that Roberts was guilty of violating his conditions of release, but he argued that Roberts was not guilty of criminal mischief. The defense attorney's theory was that, because Roberts had posted the security deposit (or, rather, because Roberts's friend had posted the security deposit), Roberts's destruction of the ankle monitor simultaneously rendered him its owner.
A jury convicted Roberts of both criminal mischief and violation of conditions of release. The superior court sentenced him to serve 30 months for the criminal mischief conviction, and to serve a consecutive 45 days for violating his conditions of release.
Roberts now appeals his criminal mischief conviction and his sentence.
The evidence was sufficient to support Roberts's conviction for criminal mischief
The relevant provision of the third-degree criminal mischief statute, AS 11.46.482(a)(1), declares that a person commits this crime "if, having no right to do so or any reasonable ground to believe the person has such a right, ... [and] with intent to damage property of another, the person damages property of another[.]" For purposes of Roberts's case, "property of another" is defined as "property in which [another] person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest in the property[.]"
AS 11.46.990(13).
At Roberts's trial, his defense attorney argued not only that Roberts reasonably believed that he affirmatively had the right to damage the ankle monitor, but also that this reading of the APS contract was in fact legally correct. More specifically, the defense attorney suggested that if a person rents or borrows someone else's property, and if the person posts a security deposit or purchases insurance for the property, then the person commits no crime even if they intentionally damage the property. According to the defense attorney, in such circumstances, the person's act of intentionally damaging the property effectively amounts to a purchase of the property — meaning that the property is no longer the "property of another."
On appeal, Roberts does not renew his trial attorney's argument that Roberts had a right to damage the ankle monitor. Instead, Roberts argues that even if his attorney's description of the law was mistaken, any reasonable juror would have had to conclude that it was at least reasonable for Roberts (as a non-lawyer) to make the mistaken assumption that he had the right to intentionally damage the ankle monitor.
When reviewing claims that the evidence is insufficient to support a criminal conviction, we must view the evidence in the light most favorable to upholding the jury's verdict. Thus, the question presented here is whether fair-minded jurors could conclude beyond a reasonable doubt either that Roberts did not actually believe that he was entitled to damage the ankle monitor or, if Roberts did believe that he was entitled to damage the monitor, that his belief was unreasonable.
See, e.g., Hughes v. State, 56 P.3d 1088, 1094-95 (Alaska App. 2002).
We dealt with an analogous situation in Bergman v. State. Bergman was charged with criminal mischief after he used a bulldozer to widen an existing trail on land owned by someone else. Bergman argued at trial that he did not act with an intent to damage the property, but rather to improve the property. This Court held that the statutory element of "intent to damage" is satisfied by proof of an intent to alter property without the owner's permission:
Bergman v. State, 366 P.3d 542, 543 (Alaska App. 2016).
Id. at 542-43.
Id. at 543.
[W]e conclude that the word "damage" in our criminal mischief statute must be interpreted so as to protect an
owner's interest in using or enjoying the property as the owner sees fit—free from alterations that other people might wish to perform to make the property "better."
Id.
Roberts makes an argument similar to Bergman's betterment argument: not that Roberts made the ankle monitor "better," but that he replaced it with its equivalent value in money. However, under Bergman, Roberts's unilateral decision to convert the ankle monitor from a physical asset of APS into a monetary one evidenced an intent to damage "property of another" for purposes of the criminal mischief statute.
Roberts does not dispute that the evidence in this case is sufficient to establish that he intended to damage the monitor. Rather, he argues that the evidence was not sufficient to negate the possibility that he might in fact have believed that he was privileged to damage the monitor by virtue of his security deposit, and that any such belief could have been a reasonable one under the circumstances.
The rights and obligations of Roberts and APS to one another were defined by their written contract. Roberts's contract with APS specified that the security deposit was subject to forfeiture if he damaged the ankle monitor, if he was charged with new crimes while on bail release, or if he otherwise went into "abscond status." The contract required Roberts to explicitly acknowledge that if he tampered with the monitoring equipment, this could lead to new criminal charges. The contract further specified that APS could terminate Roberts from the program at any time, that tampering with the device would disqualify him from the program, that he must return the monitor, and that he was liable for any legal fees arising from any lawsuit to recover for damage to the monitor.
Reasonable jurors could conclude that the provisions of this contract were incompatible with a reasonable belief by Roberts that the provisions of the contract somehow entitled him to destroy the monitor.
Viewing the evidence (as we must) in the light most favorable to upholding the jury's verdict, we conclude that the evidence presented at Roberts's trial was sufficient to support the jury's verdict.
Roberts's proposed mitigator
Roberts also argues that, because his security deposit more than covered the cost of replacing the ankle monitor, the superior court erred when it rejected his proposed mitigator AS 12.55.155(d)(9): that his act of criminal mischief was among the least serious within the definition of the offense.
The proponent of this mitigator has the burden of convincing the trial judge by clear and convincing evidence that, under the totality of the circumstances, his conduct was among the least serious within the definition of the offense. And, as we explained in an analogous case involving theft of a relatively small sum of money, the monetary value of a damaged item is an important consideration for whether conduct is the least serious, but it is "by no means the only relevant factor."
State v. Parker, 147 P.3d 690, 693 (Alaska 2006).
Gant v. State, 712 P.2d 906, 909 (Alaska App. 1986).
Here, Roberts did not testify at sentencing regarding the totality of the circumstances surrounding his decision to abscond from bail supervision. He accordingly furnished the sentencing court with no testimony concerning his motive for absconding, the circumstances surrounding the removal of the electronic monitor, or his activities during the six days he was at liberty. These unknown factors alone defeat his claim on appeal that he proved his offense to be among the least serious by clear and convincing evidence.
See Soellner v. State, 2014 WL 4177219, at *3 (Alaska App. Aug. 20, 2014) (unpublished) (noting that even though the amount on the cashed stolen check was small, the defendant failed to support his claim for a (d)(9) mitigator by establishing the circumstances surrounding the crime; these "unknown factors" defeated his claim to the mitigator). --------
In addition, Roberts's appeal is premised on the notion that, because of his security deposit, this was a victimless crime. But Roberts did not establish that he had reimbursed his friend who posted the $3000 security deposit on his behalf. Roberts accordingly failed to prove that this was a victimless crime.
For these reasons, we agree with the superior court's conclusion that Roberts failed to establish by clear and convincing evidence that his conduct was among the least serious within the definition of third-degree criminal mischief.
Conclusion
We AFFIRM the judgment of the superior court.