EVANS v. STATE, A-10076 (Alaska App. 11-18-2009)
Court of Appeals No. A-10076, No. 5543.Court of Appeals of Alaska.
November 18, 2009.
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.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-04-159 Cr.
Josie Garton (briefing) and Sarah Sheshunoff (oral argument), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
MANNHEIMER, Judge.
In late 2003 and early 2004, a series of burglaries was committed in Nikiski. A huge quantity of the property stolen in these burglaries was found in Michael C. Evans’s house — a total of about 1500 items stolen in 16 burglaries.Page 2
Evans pleaded no contest to second-degree theft (receiving stolen property), AS 11.46.130(a)(1). As one of his conditions of probation, Evans was ordered to make restitution to the burglary victims in an amount to be determined later by the superior court. This appeal concerns the manner in which the superior court calculated Evans’s restitution obligation.
At the restitution hearing, the State sought restitution for (1) the damage to the stolen property that was found in Evans’s house, (2) the loss of all the other property that was stolen during the various burglaries, and (3) the damage inflicted on the various residences and other structures during the burglaries. Evans conceded that he could be ordered to pay restitution for the losses included in category (1) (i.e., the damage to the stolen items found in his house), but he argued that he should not be ordered to pay restitution for categories (2) and (3) — because, according to Evans, there was no evidence to establish that he was criminally responsible for the underlying burglaries, or that he ever possessed any stolen property other than the items of property found in his house.
The superior court ordered Evans to pay restitution for all three categories. Here is the court’s ruling:
The Court: In this case, there were a score or more burglaries in the Nikiski area[.] . . . Mr. Evans’ home was searched, and stolen items from each of the victims listed in the restitution order were found in his house. He was clearly part of a criminal scheme, and the damage to these victims [was] part of his crime. So I’m going to hold him liable for it.
In this appeal, Evans argues that the superior court’s ruling is too indefinite to support the restitution order with respect to categories (2) and (3) — that is, withPage 3
respect to the stolen property that was not recovered from Evans’s house, and with respect to the damage inflicted during the burglaries.
Evans concedes that he could properly be ordered to pay restitution for these categories of loss if the State proved that he was criminally responsible for the underlying burglaries (either as a principal or an accomplice). But Evans argues that the superior court’s finding — that Evans was “part of a criminal scheme” — is so indefinite that it is impossible to tell if the superior court found that Evans was criminally responsible for the underlying burglaries. For this reason, Evans asks this Court to remand his case to the superior court for reconsideration.
We agree with Evans that the superior court’s ruling is ambiguous on the question of whether the State had proved Evans’s complicity in the underlying burglaries. For instance, the superior court might have declared that Evans was “part of a criminal scheme” because the court found that Evans was a large-scale “fence” of stolen property, even though Evans was not criminally responsible for the underlying burglaries.
We agree with the State that the evidence, viewed in the light most favorable to the State, would support a finding that Evans participated in the underlying burglaries either as a principal or an accomplice.[fn1] However, we can not be sure that the superior court made this crucial finding. We therefore grant Evans’s request to remand this case to the superior court for reconsideration of the restitution order.
This case is REMANDED to the superior court for an explicit determination of whether Evans is criminally responsible for any or all of the underlyingPage 4
burglaries, either through his own actions or through the actions of other persons for which he bears responsibility under AS 11.16.110(2).
With respect to each underlying burglary, if the superior court finds that Evans is criminally responsible for that burglary, the court may validly order Evans to pay restitution for all items stolen during that burglary and for all damage inflicted during that burglary.[fn2] But if Evans is not criminally responsible for a burglary, his restitution must be limited to the damage to the items from that burglary found in his house.
We do not retain jurisdiction of this case.
[fn1] See Davis v. State, 499 P.2d 1025, 1035 (Alaska 1972); Snyder v.State, 661 P.2d 638, 642 (Alaska App. 1983) (both cases recognizing that it is permissible to infer, from a person’s unexplained and exclusive possession of recently stolen property, that the person participated in the burglary / theft during which the property was stolen). [fn2] Salvato v. State, 814 P.2d 741, 744 (Alaska App. 1991).