HARTNELL v. STATE, A-10633 (Alaska App. 9-21-2011)

ROBERTA A. HARTNELL, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10633.Court of Appeals of Alaska.
September 21, 2011.

Appeal from the District Court, First Judicial District, Ketchikan, Kevin Miller, Judge, Trial Court No. 1KE-09-236 CR.

Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

James Scott, Assistant District Attorney, Ketchikan, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Roberta A. Hartnell appeals her conviction for fourth-degree theft. She claims that there was insufficient evidence to prove that she intended to deprive a cab driver of money for his services. For the reasons set out here, we affirm Hartnell’s conviction.Page 2
Discussion

A person commits theft if the person “obtains services, known by that person to be available only for compensation, by deception, force, threat, or other means to avoid payment for the services[.]”[fn1] Among other things, “services” includes “transportation.”[fn2] Hartnell was convicted of obtaining a taxi driver’s services by deception. On appeal, Hartnell claims that there was insufficient evidence to prove that she intended to avoid paying the taxi driver for his services.

In ruling on a claim that there was insufficient evidence to support a conviction, this Court must view all the evidence and the inferences from that evidence in the light most favorable to the jury’s verdict.[fn3] The question is whether, viewing the evidence in this light, there was enough relevant evidence for a fair-minded juror exercising reasonable judgment to find that the State met its burden of proving guilt beyond a reasonable doubt.[fn4] The credibility of witnesses and the weighing of evidence are issues that are determined by the trier of fact.[fn5]

Here, the jury heard the following evidence. On March 18, 2009, Hartnell hired a cab to take her from her home in Ketchikan to the Safeway Mall in Ketchikan. According to the cab driver, Gerald Primmer, the fare showing on his cab’s meter whenPage 3
they arrived at the Safeway Mall was between eight and nine dollars. Primmer testified that Hartnell asked him to wait for her while she was in the mall. He agreed to do so, although he did not know how long she would be there. He happened to have parked in a place where it would be difficult for Hartnell to leave the mall without Primmer being able to see her.

In total, Hartnell was inside the mall for twenty minutes to a half hour. But according to Primmer, at one point, Hartnell came out of the mall and, when she saw that Primmer was still waiting, she turned and went back into the mall. When she did so, she made no effort to communicate with Primmer. She later left the mall again, and this time she returned to the cab. When she entered the cab, she announced that she would not pay the fare showing on the meter, which was now a little more than twenty-one dollars. She testified that she knew that cab fare from her home to the mall was usually only eight dollars.

Primmer testified that when people hire a cab, they are paying for the cab driver’s time as well as the mileage for the trip. A cab’s meter runs while a driver waits for a passenger. He said that he did not run the meter for the entire time because it was his practice, as a courtesy, to turn the meter off for five minutes or so while waiting for a passenger.

Hartnell was aware that the meter would continue to run while Primmer waited — she testified that when she got out of the cab at the mall, she asked Primmer to “hold the meter” while she went inside to use a cash machine and buy cigarettes. Her testimony also indicated that she told Primmer she would be gone for just a short time — to get money at the ATM and cigarettes at the store. Although Hartnell claimed that Primmer agreed to hold the meter — that is, that he agreed that he would not charge her while he waited for her while she was in the mall — Primmer testified to the contrary.Page 4

He said that Hartnell asked him to wait for her and that he agreed to do so. He did not agree that he would not charge for his time while he waited for her.

When Hartnell returned to the cab, she said she only owed eight dollars, the fare for the trip from her home to the mall, and that was all that she would pay. Primmer told her that she would have to pay the entire metered fare. According to Primmer, Hartnell said that she would only pay eight dollars because that was all it cost to go from her home to the mall, but she did not actually offer him any money. When Hartnell continued to refuse to pay the metered fare, Primmer called the police.

Ketchikan Police Officer Eric Mattson responded to the call. When he arrived, the metered fare was $21.40. He tried to help the two negotiate an agreement, but Primmer and Hartnell would not settle. When Mattson asked Hartnell if there was anything that he could do or say to have her pay the fare, she said, “No, I won’t pay it.” Mattson also did not see that Hartnell had any money, or that she had offered Primmer even the eight dollars she believed that she owed.

Hartnell was given a citation for fourth-degree theft of services. Later, a jury found her guilty of the charge.

The State’s theory in this case was that Hartnell formed the intent not to pay sometime during the course of the trip from her home to the store. The State argued that the evidence showed that Hartnell hoped that if she asked Primmer to wait for her, and then did not return to the cab, Primmer would give up the fare and would leave in search of other fares. The State relied heavily on the evidence that Hartnell left the mall once and that, upon seeing that Primmer was still waiting in the parking lot, went back inside the mall. Then, when she left the mall a second time, the State argued she realized that Primmer was not going to give up the fare, so she returned to the cab and challenged the amount showing on the cab’s meter.Page 5

Here, the evidence supported the State’s trial theory. The evidence showed that Hartnell hired a cab to transport her from her home to the mall, and that Hartnell was aware that when she hired the cab, she was responsible for both the distance she was transported and for the time the driver spent waiting for her. The jury heard that Hartnell asked Primmer to wait for her, and that he waited for approximately thirty minutes while she was in the mall. The jury heard that Hartnell left the mall once, saw Primmer still waiting on her, and then turned and went back into the mall. The jury heard that when Hartnell finally returned to the cab, she refused to pay the metered fare.

Hartnell testified that Primmer agreed to hold the meter, but Primmer denied this, testifying that she had asked only that he wait for her and he had agreed to do so. Hartnell also testified that she offered to pay the eight dollars and that she had ten dollars in her hand. But as already mentioned, Primmer testified that Hartnell did not actually offer him any money, and Officer Mattson did not see any money during the time he was there. Hartnell argued at trial that this was just an honest dispute about how much she owed Primmer. But it was up to the jury to resolve the conflicting testimony.

Viewed in the light most favorable to the State, the evidence was sufficient for a fair-minded juror exercising reasonable judgment to find that the State met its burden of proving Hartnell’s guilt beyond a reasonable doubt. That is, the jury could reasonably reject Hartnell’s version of events and find that when Hartnell asked Primmer to wait for her, she did not intend to pay Primmer for the fare but instead hoped that he would leave rather than attempt to collect the fare she owed.

Conclusion

Hartnell’s conviction is affirmed.

[fn1] AS 11.46.200; see also AS 11.46.100 (theft defined). Under AS 11.46.150(a), a person “commits the crime of theft in the fourth degree if the person commits theft as defined in AS 11.46.100 and the value of the property or services is less than $50.”

[fn2] AS 11.81.900(b)(57) (“services” includes “transportation”).

[fn3] Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);Brown v. State, 693 P.2d 324, 328 (Alaska App. 1984).

[fn4] Dorman, 622 P.2d at 453; Collins v. State,977 P.2d 741, 747 (Alaska App. 1999).

[fn5] Brown v. Anchorage,680 P.2d 100, 104 (Alaska App. 1984).Page 1