TAYLOR v. STATE, A-9061 (Alaska App. 2-15-2006)
Court of Appeals No. A-9061.Court of Appeals of Alaska.
February 15, 2006.
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka, Judge. Trial Court No. 3AN-04-8140 CR.
Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.
Cyrus Gregory Taylor was convicted of criminal trespass for entering a vacant apartment in Mountain View. On appeal, he argues that the district court erred by refusing to give a jury instruction he proposed. He also argues that the court erred by refusing to admit into evidence a legal notice that was posted on the door of the apartment on the date he entered. We find no merit to Taylor’s claims and affirm his conviction.
Facts and proceedings
On August 20, 2004, at about 6:00 a.m., Laurena Phillips, the resident manager of the Oasis Apartments in Mountain View, left her apartment on her way to work. As she approached her car in the parking lot, she saw what appeared to be two “kids” dressed in black. They were wearing loose-fitting sweat jackets with the hoods up. Phillips got in her car and continued to watch them in her rear-view mirror. She saw them walk to Apartment No. 04, try the door knob, and knock on the door. After a minute or so, one of them walked around the back of the building and out of Phillips’s sight; the other remained at the front door. Phillips watched as the person who had disappeared behind the building opened the door to the apartment from the inside and let the other person in. Phillips knew that there were no doors to the apartment on the back side, only windows. She also knew that the residents of the apartment had been evicted and that no one had signed a new lease. The lock on the door had recently been changed, and on August 19, the day before, she had checked the door to make sure it was locked.
Phillips called the Anchorage police. When the police arrived, they found the apartment door unlocked and the windows open. They knocked on the door and, after receiving no response, opened the door and directed any individuals in the apartment to come out. Two teenagers, Taylor and a girl, emerged from the apartment and were taken into custody. Taylor told one of the officers that a sixteen-year-old girl named “Tammy” had let them into the apartment. Taylor said Tammy had ridden off on a mountain bike wearing a daisy-print shirt. Phillips, the apartment manager, told the police that no one named Tammy lived in the apartment.
Based on this conduct, Taylor was charged with first-degree criminal trespass. At trial, the apartment manager and several police officers testified to the above events. Taylor put on two witnesses — his younger sister and one of the former tenants of the apartment — who both testified that a girl named Tammy had lived in the apartment during the summer of 2004 while working as a babysitter for the tenants. Based on this evidence, Taylor argued to the jury that he reasonably believed he had permission to be in the apartment, and that the State had not proved beyond a reasonable doubt that he had trespassed. The jury rejected this argument and convicted Taylor.
Did the district court err by refusing to give Taylor’s juryinstruction?
At Taylor’s urging, District Court Judge Gregory J. Motyka instructed the jury on the following elements the State had to prove to convict him of first-degree criminal trespass:
In order to establish the crime of criminal trespass in the first degree, it is necessary for the State to prove beyond a reasonable doubt, the following:
First, the event in question occurred at or near Anchorage and on or about August 20, 2004;
Second, that Cyrus Gregory Taylor knowingly entered or remained unlawfully in a dwelling;
Third[,] that he recklessly disregarded that the dwelling was not open to the public; and
Fourth, that he recklessly disregarded lack of privilege to enter or remain there.
Consistent with this instruction, the jury was told that “enter or remain unlawfully” meant entering or remaining upon premises “when the premises . . . at the time of the entry or remaining, [are] not open to the public and when the defendant is not otherwise privileged to do so.”[fn1]
Taylor has not argued — nor could he, persuasively — that these instructions misstated the law.[fn2] Rather, he argues that the court erred by refusing to supplement these instructions with the following additional instruction that he proposed:
One who enters a dwelling with a privilege to do so is not guilty of trespass, as defined herein. Therefore, if Defendant Cyrus Taylor had such a privilege or believed he had such a privilege, he did not commit trespass.
In this case, the burden is on the State to prove the absence of privilege. The State must prove this element beyond a reasonable doubt. If the State failed to do so, your verdict should be not guilty.
Although Taylor in his briefing asserts that he offered two similarly worded jury instructions, only his claim as to the instruction reproduced above was preserved for appeal.[fn3] In any event, the analysis below applies equally to both proposed instructions.
At trial, Taylor did not explain why the court should give this supplemental instruction. In fact, he conceded that the proposed instruction, as written, was “very confusing.” He went on to say: “I can’t imagine [that] it’s going to help the jury any.” Judge Motyka declined to give the instruction, ruling that the elements instruction adequately conveyed the State’s burden to prove that Taylor recklessly disregarded his lack of privilege to be in the apartment.
We find no abuse of discretion. As we explained in Stonekingv. State:[fn4] “When a standard instruction correctly sets out the elements of an offense or a defense, the court is under no obligation to give an instruction tailor-made to the facts of a specific case unless unique circumstances exist that would render the special instruction especially helpful to the jury.”[fn5] Taylor has not shown that his proposed instruction would have been especially helpful to the jury; indeed, at trial he conceded that the instruction was “confusing” and was “[not] going to help the jury any.”
Furthermore, even if the court had erred in refusing to give Taylor’s proposed instruction, any error was harmless. Taylor’s complaint on appeal is that the elements instruction did not properly convey that it was the State’s burden to disprove that he had a reasonable belief that he had permission to be in the apartment. In closing arguments, both parties described the issue before the jury to be whether Taylor “reasonably believed” he had permission to be in the apartment. They also told the jury that it was the State’s burden to prove beyond a reasonable doubt that Taylor did not have such a belief. In light of these closing arguments and the jury instructions, to convict Taylor, the jury must have concluded beyond a reasonable doubt that Taylor did not reasonably believe he had permission to be in the apartment. Therefore, even if the court had erred in refusing to give Taylor’s proposed instruction, that error had no substantial effect on the jury’s verdict and did not impermissibly shift the burden of proof.[fn6] Did the court err by refusing to admit the abandonmentnotice?
Taylor next argues that the court abused its discretion, and violated his constitutional right to present a defense, by refusing to admit into evidence a notice that was posted on the door of the apartment on August 20, the date he entered the apartment. That notice was addressed to the evicted tenants of the apartment, alerting them that they had until August 24 (fifteen days from the date the notice was posted) to claim any personal property left in the apartment. At trial, Taylor asked the court to admit this notice to support his claim that he might have interpreted the notice to mean that he had permission to enter the apartment.
When Taylor asked the court to admit this document, the State was still presenting its case and the parties had not yet discussed jury instructions. At that point, the State was still disputing that Taylor’s subjective belief as to whether he had permission to be in the apartment was relevant to the offense of first-degree criminal trespass. (Ultimately, during the debate over jury instructions, the State lost this legal argument.) Judge Motyka decided to delay a decision on whether to admit the notice until this issue was resolved. He ruled that, until the court addressed jury instructions, “or until [Taylor] gets up and testifies, [it’s excluded.]” Taylor never renewed his request to admit the notice. Consequently, he waived any claim that the court abused its discretion by refusing to admit the document.[fn7] Moreover, because the court properly applied the evidence rules in excluding the notice, Taylor cannot persuasively claim that he was deprived of his constitutional right to present a defense.[fn8]
In any event, Taylor was able to get the substance of the notice before the jury. During cross-examination by Taylor, the apartment manager testified to the content of the fifteen-day notice and stated that it was posted on the door of the apartment on the date Taylor entered. During closing argument, without objection from the State, Taylor argued that he may or may not have seen the notice, and that if he had seen the notice, he might have interpreted it to mean he had a right to be in the apartment on August 20. Therefore, even if the court had abused its discretion by refusing to admit this notice, Taylor had a full opportunity to present his defense and any error would be harmless beyond a reasonable doubt.[fn9] Conclusion
We AFFIRM Taylor’s conviction.
[fn1] See AS 11.46.350(a)(1). [fn2] See Johnson v. State, 739 P.2d 781, 784 (Alaska App. 1987); AS 11.81.610(b)(2). [fn3] See Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989). [fn4] 800 P.2d 949 (Alaska App. 1990). [fn5] Id. at 950 (citing Wortham v. State, 689 P.2d 1133,1143 (Alaska App. 1984)). [fn6] See State v. Gilbert, 925 P.2d 1324, 1328 (Alaska 1996) (citing Love v. State, 457 P.2d 622, 631 (Alaska 1969)). [fn7] See Strumsky v. State, 69 P.3d 499, 505 (Alaska App. 2003). [fn8] See Heaps v. State, 30 P.3d 109, 112 (Alaska App. 2001). [fn9] See Braham v. State, 571 P.2d 631, 647-48 (Alaska 1977).