Opinion
Court of Appeals No. A-10786 Trial Court No. 3AN-09-11297 CR No. 5866
08-01-2012
FRANK THORNTON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge.
Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Frank Thornton was convicted of first-degree vehicle theft, third-degree criminal mischief, failure to stop at the direction of a police officer, driving with a revoked license, and three counts of third-degree assault. On appeal, Thornton argues that there was insufficient evidence to support his conviction for first-degree vehicle theft, that the trial judge improperly responded to a jury question regarding the elements of first-degree vehicle theft, that there was insufficient evidence to support his convictions for third-degree assault against two occupants of a truck he nearly collided with, that the trial judge did not explicitly ask whether Thornton wished to testify, and that his composite eight-year sentence is excessive. For the reasons detailed in this opinion, we affirm Thornton's conviction and sentence.
Background
On the morning of September 28, 2009, Michael Vickors discovered that his 2006 Toyota Tacoma had been stolen sometime during the previous night. He reported the theft to the Anchorage Police Department.
On September 30, 2009, Anchorage Police Officer Jeffrey Bell discovered Vickors's truck parked at the Chelsea Inn. He and Officer Kevin Mitchell parked nearby and waited to see if anyone approached the truck. Within a few minutes, Officer Bell observed four people exit the Chelsea Inn and enter the stolen vehicle. The driver was later identified as Frank Thornton and the passengers as Charles Burt Jr., Charles Burt III, and Christina Rasmussen.
Officer Mitchell stood in front of the truck and ordered Thornton to put his hands up and to get out of the vehicle. But Thornton abruptly started the truck and accelerated out of the parking lot. Thornton nearly hit Officer Mitchell, knocked over a lamp pole, and drove over the sidewalk as he sped away. Thornton also nearly collided with a truck driven by Charles Hately.
The stolen truck was abandoned on a dead-end road in the Turnagain area. Thornton attempted to hide in a nearby backyard, but was quickly apprehended.
Thornton was indicted on charges of first-degree vehicle theft, criminal mischief, failure to stop at the direction of a police officer, and third-degree assault against Officer Mitchell, Charles Hately, and Hately's passenger, Daniel Talbert. He was also charged with driving with a revoked license.
At trial, Thornton's attorney argued that Thornton was not at the Chelsea Inn, had not stolen the truck, and had not run from the police. He asserted that Officer Mitchell was mistaken, and that the three passengers in the truck were lying, when they all identified Thornton as the driver of the truck. Thornton was convicted of all seven charges.
Discussion
There was sufficient evidence to support Thornton's conviction for vehicle theft in the first degree.
At the conclusion of the State's case, Thornton moved for judgments of acquittal on all counts, including the charge of first-degree vehicle theft. Thornton argued that the truck had been stolen three days before it was found in his possession and that the State had presented no evidence that Thornton was the person who stole it and no evidence of Thornton's state of mind. Superior Court Judge David C. Stewart denied the motion. Thornton repeats these arguments on appeal.
When an appellate court reviews the sufficiency of evidence, it views the evidence presented at trial and all reasonable inferences to be drawn from that evidence in the light most favorable to the verdict. A person commits first-degree vehicle theft "if, having no right to do so or any reasonable ground to believe the person has such a right, the person drives, tows away, or takes ... [the vehicle] of another." Before Thornton could be lawfully convicted of first-degree vehicle theft, the State was required to prove that, when Thornton initially took the vehicle, he knew that he had no right to do so.
Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)).
AS 11.46.360(a)(1).
See Dobberke v. State, 40 P.3d 1244, 1247 (Alaska App. 2002).
Thornton claims the State offered no evidence that Thornton knew that he did not have a right to drive Vickors's truck when he initially drove it. But the Alaska Supreme Court has held that a defendant's unexplained, exclusive possession of recently stolen property is evidence that the defendant stole the property and knew the property was stolen. Many other courts have likewise held that a defendant's unexplained, exclusive possession of a recently stolen vehicle is sufficient evidence to allow a jury to infer that the defendant stole the vehicle.
See Davis v. State, 499 P.2d 1025, 1035 (Alaska 1972) (discussing rule that guilt may be inferred from a defendant's exclusive, unexplained, and fairly recent possession of stolen property), rev'd on other grounds, Davis v. Alaska, 415 U.S. 308 (1974).
See, e.g., United States v. Weston, 466 F.2d 435, 437-38 (D.C. Cir. 1972) (indicating the defendant's exclusive and unsatisfactorily explained possession of vehicle stolen three weeks earlier permitted inference that defendant was the thief); Brown v. State, 299 S.E.2d 108 (Ga. App. 1983) (holding that evidence that the defendant was found in possession of vehicle stolen six days prior was sufficient to sustain conviction regardless of lack of direct evidence of defendant's taking of vehicle); Warfle v. State, 276 S.E.2d 689, 690 (Ga. App. 1981) (indicating evidence that defendant was driver of a vehicle stolen two days earlier was sufficient to sustain vehicle theft conviction absent a satisfactory explanation); People v. Donald, 270 N.E.2d 85, 86 (Ill. App. 1971) (holding that evidence that the defendant was driving stolen vehicle and attempted to escape police was sufficient to sustain conviction despite lack of direct evidence that defendant had taken the vehicle); Jelks v. State, 720 N.E.2d 1171, 1174 (Ind. App. 1999) (describing how the unexplained, exclusive possession of vehicle stolen six days prior was sufficient to sustain a conviction for vehicle theft); State v. Dobson, 303 S.W.2d 650, 651 (Mo. 1957) (holding that the defendant's exclusive and unexplained possession of automobile stolen more than three weeks earlier was sufficient to sustain conviction for vehicle theft); State v. Brown, 296 N.W.2d 501, 504 (S.D. 1980) (holding that the evidence that a defendant was found in unexplained possession of stolen vehicle was sufficient to support vehicle theft conviction); Ware v. State, 565 S.W.2d 906, 907 (Tenn. Crim. App. 1978) (holding that evidence of defendant's possession of stolen vehicle without adequate explanation for such possession was sufficient to support conviction).
In this case, the truck's owner testified that his truck was stolen from the street next to his home. Thornton was found driving the truck less than three days later. The rear window of the truck was broken out sometime after the owner last saw it. These facts reasonably suggest that Thornton stole the truck three days earlier. The additional evidence of Thornton's attempt to escape the police strengthens this inference.
During Thornton's trial, Charles Burt III testified that, as Thornton was driving from the hotel parking lot, Thornton said he "wasn't going to jail because he had drugs on him." Thornton argues that this testimony is "uncontroverted evidence" that Thornton fled because he did not want to be caught with drugs, not because he stole the truck. But the suggestion that Thornton fled because of these drugs is not the only reasonable inference from this testimony. The jury was also free to consider this evidence of Thornton's flight as evidence that Thornton stole the truck, or knew when he first drove the truck that he had to right to do so.
Judge Stewart responded reasonably to the jury's question about Thornton's state of mind.
After final arguments, Judge Stewart instructed the jury that, in order to prove that Thornton committed first-degree vehicle theft, the State was required to prove the following beyond a reasonable doubt:
(1) [that] the defendant knowingly drove, towed away, or took the car, truck, motorcycle, motor home, bus, aircraft, [or] watercraft of another; and,
(2) when the defendant initially drove, towed away, or took the car, truck, motorcycle, motor home, bus, aircraft, [or]
watercraft, he had no right to do so and no reasonable ground to believe he had such a right.
Later, during jury deliberations, the jury sent the following note to the judge:
We need further clarification of element 2 of Count I. When Officer Mitchell told the defendant to stop and exit the vehicle and made it clear that he should stop, does that constitute, no reasonable right ([for the] defendant) to believe he could drive the truck?
In response to this question, Thornton's attorney requested that the court simply respond with "no," expressing concern that any other response would suggest that first-degree vehicle theft could be charged whenever a person drives a car away after being told by an officer to stop. But Judge Stewart stated that he did not think it was appropriate to instruct the jury on how to use any particular piece of evidence.
Judge Stewart instead gave the jury the following written response:
I cannot instruct you [on] how you should apply evidence to the element in question. I can instruct you that vehicle theft in the first degree requires that the State prove that when a defendant first drove a vehicle in question, the State also prove that a defendant had no right to do so or any reasonable ground to believe he had the right to do so.
Thornton argues on appeal that Judge Stewart's response failed to clarify the elements of first-degree vehicle theft, allowing the jury to convict him merely because he disobeyed a police officer's order to stop and exit the vehicle. We agree that the trial judge must correctly instruct the jury on the essential elements of an offense, and we review the legal sufficiency of such instructions de novo. But where the instructions are legally sufficient, we review a judge's response to a question from the jury for abuse of discretion.
Chenega Corp. v. Exxon Corp., 991 P.2d 769, 775 (Alaska 1999); Thomas v. State, 522 P.2d 528, 531 n.11 (Alaska 1974); Robart v. State, 82 P.3d 787, 795 (Alaska App. 2004).
Chenega Corp., 991 P.2d at 776; Des Jardins v. State, 551 P.2d 181, 190 (Alaska 1976).
The jury's question to Judge Stewart seems to indicate either that the jury was not focusing on Thornton's initial taking of the truck as they were required to do, or that the jury may have concluded that the first time Thornton drove the truck was after being confronted by the police in the Chelsea Inn parking lot. If the jury concluded that the first time Thornton drove the truck was during his encounter with the police officers, the officers' actions and commands are circumstantial evidence relevant to the reasonableness of Thornton's belief that he had a right to drive the truck. The jury could have reasonably inferred that Thornton knew he had no right to drive the truck from his decision to drive away despite the fact that the officers had their guns drawn and he was being commanded to get out of the truck.
Alternatively, if the jury concluded that Thornton initially drove the truck on the night it was stolen, then their question indicates that they were not focusing on Thornton's right to drive the truck at the time he initially drove the truck, as they were required to do. Judge Stewart's response emphasized that the State must prove that Thornton had no reasonable belief that he had a right to drive the truck when he "first drove [the] vehicle." Even in this case, however, the jury could consider the fact that Thornton had tried to escape from the officers as evidence that he knew he had no right to drive the vehicle.
We conclude that the jury was properly instructed on the law of first-degree vehicle theft and that Judge Stewart's response to the jury's question was a correct statement of the law. It was reasonable for Judge Stewart to tell the jury that he could not instruct them on how they should apply the evidence. And the judge did not abuse his discretion when he focused the jury's attention on the requirement that Thornton's state of mind had to be determined at the time he first drove the truck.
There was sufficient evidence to support Thornton's convictions for third-degree assault.
During Thornton's flight from the police, he ignored a stop sign at an intersection near Turnagain Elementary School. Charles Hately and his passenger Daniel Talbert were approaching the intersection from a different direction. As Hately started through the intersection, he saw a dark blue vehicle out of the corner of his eye and slammed on his brakes. Talbert was not wearing his seatbelt and his head hit the windshield. Hately and Talbert both testified that they saw a dark blue truck flash by in front of their vehicle.
At trial, Hately testified that, had he not slammed on his brakes, the blue truck would have "t-boned" his vehicle and, more than likely, one of the two men "would have been dead." Talbert testified that he was grateful Hately was paying attention because, had Hately not slammed on his brakes, the blue truck would have hit the passenger side of Hately's vehicle, and Talbert likely would not have walked away from the collision.
Thornton now argues that there was insufficient evidence to support his convictions for third-degree assault committed against Hately and Talbert. Third-degree assault required the State to prove that Thornton recklessly "place[d] another person in fear of imminent serious physical injury by means of a dangerous instrument." In this context, "fear" means to reasonably perceive or understand the threat of imminent injury.
AS 11.41.220(a)(1)(A).
Hughes v. State, 56 P.3d 1088, 1090 (Alaska 2002).
In this case, Hately testified that he slammed on his brakes in reaction to the threat posed by Thornton's approaching truck and that, had he not done so, the blue truck would have "t-boned" his vehicle. Talbert testified that he looked up just in time to see "a blue flash" and saw that the truck had "just barely missed" them. Viewed in the light most favorable to the verdicts, this testimony was sufficient to allow a reasonable juror to conclude that both Hately and Talbert reasonably perceived the threat of a deadly collision.
Judge Stewart reasonably concluded that Thornton had made a knowing and voluntary decision not to testify at trial.
At the beginning of the trial, Judge Stewart told Thornton that he would have the right to testify, and that he personally would have the choice of whether to exercise that right. Then, at the conclusion of the State's case, Judge Stewart asked Thornton's attorney whether Thornton would be testifying. The attorney told the judge that he would need a moment with Thornton off the record.
When the parties came back on the record, however, Thornton's attorney immediately moved into his motion for judgments of acquittal and then proceeded with the defense case. Thornton presented only one witness. The defense offered no other witnesses, and the jury was excused.
After the jury left the courtroom, Judge Stewart again addressed Thornton regarding his right to testify:
THE COURT: Okay. The trial jury is absent, the parties are present. Mr. Thornton, you still can make the choice to testify if you wish. I would bring them back in if that's your choice. But if your choice is not to testify, I have to make sure I ask you a couple questions. Do you still understand it's your choice alone, not [the defense attorney's] choice?
MR. THORNTON: Yes, Sir.
THE COURT: Is anyone threatening you not to testify that's saying, you know, you better not go on the stand, et cetera?
MR. THORNTON: No, Sir.
THE COURT: Okay. And you're feeling okay today such that it's a decision made when you're not under the influence of anything?
MR. THORNTON: Absolutely.
THE COURT: Okay. And [are] you satisfied with my inquiry, [prosecutor]?
PROSECUTOR: I am, Sir. Thank you.
THE COURT: Any questions you want me to ask him, [defense attorney]?
DEFENSE ATTORNEY: No.
THE COURT: I didn't think so. Okay. I'll find that he's been advised under [Rule] 27.1.
After some discussion of the jury instructions, the jury returned to the courtroom, and the attorneys gave their closing arguments. During Thornton's closing argument, his attorney informed the jury that "Mr. Thornton has an absolute right not to testify, a constitutional right not to testify" and told them that they "can't hold that against ... him."
Thornton did not express a desire to testify at any point during the trial or even following the verdict. On appeal, however, Thornton argues that Judge Stewart's inquiry was incomplete because the judge did not specifically ask Thornton whether he was voluntarily waiving his right to testify.
A defendant has a constitutional right to testify on his or her own behalf. In the case of LaVigne v. State, the Alaska Supreme Court held that a trial judge must ask the defendant whether they understand that they must make a personal decision about whether to testify, and that the judge must determine whether the defendant has voluntarily chosen not to testify. However, a judge's failure to perform this inquiry does not necessarily establish that a defendant is entitled to reversal. A defendant claiming that his right to testify was violated must meet the threshold burden of proving that he or she actually wanted to testify and that the testimony would have been relevant.
See LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991) (citing Rock v. Arkansas, 483 U.S. 44 (1987); Hughes v. State, 513 P.2d 1115 (Alaska 1973)).
Id. at 222.
See Weist v. Anchorage, 929 P.2d 668, 669 (Alaska App. 1996).
See LaVigne, 812 P.2d at 220-21; Weist, 929 P.2d at 669.
Thornton argues that he did not realize during Judge Stewart's inquiry that he was being faced with the choice of whether to testify. But this argument is not consistent with the record. Judge Stewart explicitly asked Thornton if he was making this decision himself, and Judge Stewart offered to bring the jury back if Thornton wished to testify. Thornton affirmed that he understood that the decision on whether to testify was his personal decision and not his attorney's. We conclude that the inquiry Judge Stewart made was sufficient to satisfy the requirements of LaVigne.
Thornton's composite sentence is not clearly mistaken.
Thornton was convicted of first-degree vehicle theft, third-degree criminal mischief, three counts of third-degree assault, failure to stop at the direction of a peace officer, and driving while his license was revoked. Six of these seven counts were class C felonies. Because Thornton was a third-felony offender, he was subject to a presumptive term of three to five years for each felony conviction. Judge Stewart imposed a composite sentence of eight years.
AS 11.46.360(a)(1).
AS 11.46.482(a)(1).
AS 11.41.220(a)(1)(A).
AS 28.35.182(a)(1), (2).
AS 28.15.291(a)(1).
See AS 11.46.360(c); AS 11.46.482(d); AS 11.41.220(e); AS 28.35.182(e).
See AS 12.55.125(e)(3).
Thornton's pre-sentence report reflects a long criminal history, including second-degree theft, fourth-degree misconduct involving a weapon, first-degree burglary, resisting arrest, providing false information, criminal mischief, driving with a revoked license, several convictions for fourth-degree assault, and a prior first-degree vehicle theft. Thornton has also violated the conditions of his probation numerous times.
Thornton relies on the Neal-Mutschler rule, and argues that Judge Stewart was clearly mistaken in imposing a composite sentence that exceeded the maximum sentence for his most serious offense. The Neal-Mutschler rule provides that a judge may impose a composite sentence for two or more offenses that exceeds the maximum term of imprisonment for the most serious offense only if the judge makes a finding that a longer term is necessary to protect the public.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 380-81 (Alaska 1977). But see Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010) (stating that such a sentence "can sometimes be justified by [other] sentencing goals").
--------
Judge Stewart recognized that, in order to impose a composite sentence longer than the maximum sentence for any individual offense, he was required to determine that such a sentence was necessary to protect the public. He stated that the need to protect the public in this case was "a given" because of Thornton's "dangerous conduct." Judge Stewart then sentenced Thornton to a composite sentence of eight years.
Thornton acknowledges that Judge Stewart concluded that the eight-year sentence was necessary to protect the public, but he asserts that this finding was improperly based solely on Thornton's conduct in the present case. But Thornton's argument is not supported by the record. Judge Stewart indicated that he was more concerned with Thornton's composite sentence than with each individual sentence; he discussed Thornton's extensive criminal history, his age, and the information contained in his pre-sentence report, and concluded that Thornton had demonstrated a continual failure to comply with the law. He also pointed out that his current offenses were his most dangerous yet and that he was a "worst offender," at least with respect to his assault against Officer Mitchell and his failure to stop at the direction of a peace officer.
Judge Stewart reasonably concluded that a composite sentence longer than the maximum term permitted for any one offense was necessary to protect the public. We accordingly conclude that Thornton's composite sentence was not clearly mistaken.
Conclusion
We AFFIRM the superior court's judgment and sentence.