Opinion
Court of Appeals No. A-11914 No. 6305
03-09-2016
JEREMY DYLAN SIMILE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Gayle J. Brown, Attorney at Law, Anchorage, for the Appellant. William M. Perry, Assistant District Attorney, Palmer, 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. 3PA-13-191 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Appearances: Gayle J. Brown, Attorney at Law, Anchorage, for the Appellant. William M. Perry, Assistant District Attorney, Palmer, 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).
Jeremy Dylan Simile was convicted of first-degree burglary and fourth-degree misconduct involving a controlled substance after he stole a fanny pack containing money, credit cards, and prescription medications from the apartment of an elderly Wasilla resident. On appeal, Simile challenges the sufficiency of the evidence supporting his convictions. Having reviewed the record before us, we conclude that the evidence was sufficient.
Simile also argues that the superior court committed error when it ruled that Simile failed to prove his proposed statutory mitigator that his conduct was among the least serious within the definition of first-degree burglary. We reject this contention as well, and we therefore affirm the judgment of the superior court.
AS 12.55.155(d)(9).
Background facts
Late in the evening of December 1, 2012, Emery Friend — an elderly Wasilla resident — heard a knock at his apartment door. Using his walker for assistance, Friend made his way across the room and opened the door. A man stepped just across the threshold of the apartment, snatched Friend's fanny pack from the top of his walker, and immediately departed. In the pack were Friend's cash, checkbook, bank cards, social security card, between twenty-four and thirty Oxycodone pills, and other medications.
Friend told Wasilla Police Officer Ben Dudley that the man who had taken his belongings looked familiar but that he could not remember where he had previously seen him.
Friend later recalled where he had met the man before. A few days before the incident, Friend had three guests in his home. Two of the guests were a woman and her adult daughter. Friend recalled that the third guest, a stranger brought by the two women, was the man who had stolen his fanny pack. Friend could not recall the man's name, but he did remember that he had mentioned the name to his personal care assistant. Friend called the assistant, and she reminded him that the man's name was Jeremy Simile. The assistant then called the police and gave them Jeremy Simile's name. Officer Dudley visited Friend and showed him a photo lineup, and Friend immediately identified Simile.
A week or more later, Friend contacted Officer Dudley to report that the pack had been returned to him. Someone who knew both Friend and Simile had heard about the theft and then located the pack in the passenger seat of a car frequently used by Simile. The cash, at least one credit card, and the Oxycodone and other medicine were missing.
Simile was charged with first-degree burglary, two counts of second-degree theft, and fourth-degree misconduct involving a controlled substance. A jury convicted him on all four counts.
AS 11.46.300(a)(1), AS 11.46.130(a)(7), and AS 11.71.040(a)(3)(B), respectively.
At sentencing, Simile asked the judge to apply the "least serious conduct" statutory mitigator to the burglary conviction because he had barely entered Friend's apartment and he had only stayed there a second or two. The judge rejected this proposed mitigator, finding that Simile's conduct was not among the least serious because he had taken advantage of an elderly and isolated victim who had previously invited Simile into his home.
AS 12.55.155(d)(9).
The judge merged the theft convictions into the conviction for first-degree burglary. This was contrary to the supreme court's holding in Mead v. State, but the State has not appealed this ruling. The judge sentenced Simile to 8 years with no time suspended for the burglary conviction and a concurrent sentence of 3 years for the misconduct involving a controlled substance conviction.
489 P.2d 738 (Alaska 1979).
This appeal followed.
Why we affirm Simile's convictions
Simile challenges the sufficiency of the evidence supporting his convictions. Evidence is legally sufficient to support a criminal conviction if the evidence and the reasonable inferences to be drawn from it, when viewed in the light most favorable to the verdict, are sufficient to convince fair-minded jurors that the State has proved its allegations beyond a reasonable doubt.
State v. McDonald, 872 P.2d 627, 653 (Alaska App. 1994).
Simile first claims that Friend's identification of him lacked credibility due to his initial failure to recall Simile's identity. But when deciding a claim of insufficient evidence, it is not the task of this Court to weigh the evidence or the credibility of the witnesses. Rather, we view the evidence in the light most favorable to the jury's verdict. The evidence recounted above meets this test.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Lawrence v. State, 269 P.3d 672, 675 (Alaska App. 2012).
Simile also argues that there was insufficient evidence to prove that his entry into Friend's apartment was unlawful, because he had been invited to enter on a previous occasion. In support of this argument, Simile relies on Arabie v. State. In Arabie, we held that a person could not be convicted of burglary when the person was lawfully allowed to enter a retail establishment and then stole items from an area of the store not open to the public. But Arabie provides no support for Simile's claim that prior permission to enter a home automatically applies to a future entry into the home to commit a crime. And we reject as unreasonable Simile's argument that merely by opening the door Friend impliedly invited Simile to enter the apartment.
699 P.2d 890 (Alaska App. 1985).
Id. at 893-94.
On the record before us, we conclude that there was sufficient evidence for a jury to conclude beyond a reasonable doubt that Simile was the perpetrator of the charged crimes and that his entry into Friend's home was unlawful.
Why we affirm Simile's sentence
Simile also challenges his sentence of 8 years to serve on the burglary conviction, arguing that the trial court erred in rejecting the "least serious conduct" statutory mitigator. Under AS 12.55.155(d)(9), a sentencing judge is permitted to impose a sentence below the low end of the applicable presumptive range — in this case 6 years — after finding that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense."
See AS 12.55.125(d)(4).
Simile argues that his brief intrusion would not have terrorized Friend and so the burglary was atypically innocuous. As a preliminary matter, Simile's argument on appeal differs from the argument he made to the trial court; there he argued that his crime was among the least serious because of the minimal extent of the physical entry into Friend's apartment, an argument not based on Friend's emotional reaction to the burglary. This Court will not ordinarily consider an argument made for the first time on appeal.
Linscott v. State, 157 P.3d 1056, 1059 (Alaska App. 2007).
But even were we to reach the merits of Simile's argument, his claim would fail. A sentencing judge is permitted to consider the circumstances surrounding the commission of the offense, including the victim's advanced age or special vulnerability. Friend testified that he is now extra cautious when he opens his door because he felt so helpless during the burglary. He stated, "I have very little, and what little I've got, I want to keep."
See Inga v. State, 2004 WL 719626, at *8 (Alaska App. Mar. 31, 2004) (unpublished). --------
We find no error in the judge's rejection of the proposed mitigator based on her conclusion that Simile took advantage of an elderly, vulnerable victim.
Conclusion
The judgment of the superior court is AFFIRMED.