Buckwalter v. State

• Decision Date: 11 May 2001
• Docket Number: No. A-7303.,A-7303.
• Parties: Daniel Roy BUCKWALTER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

23 P.3d 81

Daniel Roy BUCKWALTER, Appellant, v. STATE of Alaska, Appellee.

No. A-7303.

Court of Appeals of Alaska.

May 11, 2001.

Chet Randall, Assistant Public Advocate, and Brant K. McGee, Public Advocate, Anchorage, for Appellant.

John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

STEWART, Judge.

A jury convicted Daniel Roy Buckwalter of first-degree theft¹ and scheme to defraud² for stealing more than $25,000 in goods from businesses in Anchorage, Eagle River, and Wasilla during a ten-month period in 1997 and pawning the goods for cash. Buckwalter argues that the superior court should have dismissed his indictment. He also claims that the trial jury was improperly instructed. We find no abuse of discretion or, at worst, harmless error in those trial court rulings. We also reject Buckwalter's claim that his net 6 year term to serve is excessive. However, we remand the case for reconsideration of Buckwalter's sentence because the superior court erroneously found that a certain statutory aggravating factor applied to the sentence for scheme to defraud. In October 1997, Buckwalter pawned a lawn mower at a pawn shop in Anchorage. While checking pawn shop records, Detective James Scroggins of the Anchorage Police Department discovered that the lawnmower Buckwalter pawned had been reported stolen by an Anchorage landscaping company.

Detective Scroggins checked Buckwalter's activity in the police department's pawn shop database and discovered that the pawn shop lists showed that he and his wife, Donna Buckwalter, had pawned hundreds of items between July 1996 and September 1997. Further research by Scroggins confirmed that some of these items were reported stolen, so Scroggins arranged for police surveillance of the Buckwalters.

The police started following the Buckwalters in October 1997. They saw the couple stealing items from Wal-Mart and Carrs stores and pawning those items at pawn shops. The police finally arrested the Buckwalters on October 24, 1997, after they watched them steal a stereo from the Carrs store in Eagle River and pawn it at a Cash Alaska pawn shop on Muldoon Road. The truck Buckwalter was driving when he was arrested had been reported as stolen from ABC Motor Home Rentals.

Buckwalter told police that he was addicted to heroin and that he had stolen the property to pay for drugs. Buckwalter identified more than seventy items on the pawn lists that he was sure he had stolen, many of them from Wal-Mart. At grand jury, Detective Scroggins testified that most of the stolen goods were "new-type" items. Scroggins testified that the goods Buckwalter identified as stolen, combined with the items the police saw him steal in October, totaled more than $25,000, the statutory minimum for first-degree theft. A copy of the pawn lists that included check marks identifying the goods Buckwalter admitted he had stolen was presented to the grand jury. The State also offered testimony that the police saw Buckwalter stealing items from Wal-Mart and Carrs that were not on the pawn lists and that were worth close to $900.

The grand jury jointly indicted the Buckwalters on one count of scheme to defraud, one count of first-degree theft, and one count of vehicle theft in the first degree.³

Buckwalter moved to dismiss the indictment, arguing that (1) the grand jury had not been adequately instructed that a scheme to defraud cannot be based on ad hoc instances of fraud, but requires an overall intent or plan to defraud five or more persons; (2) the prosecutor had failed to present exculpatory evidence in the form of statements by Donna Buckwalter that the thefts were spontaneous; (3) the State presented insufficient evidence that Buckwalter had stolen $25,000 or more; and (4) the State presented insufficient evidence that the vehicle was stolen. Donna Buckwalter joined in this motion and argued separately that the trial court had failed to instruct the jury that it could aggregate thefts to reach $25,000 only if the thefts were part of one course of conduct.⁴ Superior Court Judge Larry D. Card denied all the motions.

At trial, the State presented evidence that the Buckwalters had pawned items, many of which Buckwalter had admitted were stolen, at five Cash Alaska pawn shops and eight other pawn shops in Anchorage and Eagle River. An assistant manager for the Wasilla Wal-Mart produced a list of the 1997 retail values of property Buckwalter had admitted to stealing from Wal-Mart and arrived at a total of more than $22,000. The State presented evidence of more stolen items for a total of $26,762.54.

The jury found Buckwalter guilty of first-degree theft and scheme to defraud. The jury was unable to reach a verdict on first-degree vehicle theft and the court declared a mistrial on that count.

Judge Card sentenced Buckwalter to 6 years with 1 year suspended for first-degree theft and 5 years with 1 year suspended for scheme to defraud. The court ordered Buckwalter to serve 1 year of the sentence imposed for scheme to defraud consecutively to the theft. The court also revoked Buckwalter's probation in an unrelated case and imposed 360 days consecutive to the sentence in this case.

Discussion

Buckwalter's grand jury claims

Buckwalter raises several claims relating to his indictment that the superior court rejected. First, he renews his claim that the State presented insufficient evidence that the value of the property exceeded $25,000, the jurisdictional minimum for first-degree theft.

The grand jury must indict a defendant "when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant."⁵ When we review the sufficiency of the evidence presented in support of an indictment, we must decide if the evidence before the grand jury presented a sufficiently detailed account of criminal activity and the defendant's participation in that activity to meet that standard.⁶

Detective Scroggins testified at the grand jury. Scroggins told the grand jurors that he had asked Buckwalter if any of the hundreds of items on the lists of property pawned by him and Donna Buckwalter were not stolen. Scroggins testified that Buckwalter said "probably not." Buckwalter told Scroggins that he owned a chainsaw, but the pawn lists showed that Buckwalter had pawned approximately fifteen chainsaws in the period from March through September 1997. Buckwalter marked more than seventy items on the lists that he was "sure" he had stolen. In addition to the items on the pawn lists, the grand jury heard evidence of items Buckwalter stole while under police surveillance, which were worth close to $900.

Scroggins testified that his duties included the obligation to judge the value of stolen items. He estimated that the value of the items Buckwalter admitted to stealing, and those the police observed him steal, exceeded $25,000. We conclude that this evidence provided the grand jury with a rational basis for concluding that Buckwalter's theft totaled at least $25,000.⁷

Next, Buckwalter argues that the State failed to present exculpatory evidence to the grand jury. Although Buckwalter made an exculpatory evidence claim below, the claim he now makes is not the claim he advanced in the superior court. Now Buckwalter argues that the State knew one of the pawn shops he frequented was not part of his scheme to defraud because the pawn shop operator was aware that the goods were stolen. Because Buckwalter did not raise this claim before the superior court, we conclude that Buckwalter waived this claim.⁸

For his final grand jury claim, Buckwalter argues that because the State aggregated a series of thefts to reach the $25,000 value needed to prove first-degree theft, the State should have instructed the grand jury that it had to find that the aggregated thefts comprised a single course of conduct.

The common law allowed aggregation of misdemeanor thefts to support a felony charge only if the thefts were from the same owner at the same time and place and were motivated by a single criminal intent.⁹ Alaska's aggregation statute, AS 11.46.980(c), is adapted from the less rigid Model Penal Code approach. Model Penal Code § 223.1 takes a "middle ground" between the common law requirement of "unity of place, time, and victim" and the unlimited aggregation of thefts permitted by some state criminal codes.¹⁰ The commentary explains:

The degree of the actor's disregard of property rights cannot always be judged by looking at the amount which he takes at a single moment from a single person. The bank teller who day after day steals $20 from his employer will have $600 at the end of a month and clearly should be regarded as engaged in felonious theft. The driver of a department store delivery truck containing hundreds of parcels, each worth less than $50, ought not to be regarded as a petty thief who is guilty of multiple offenses when he sells the contents of the truck to a "fence" and makes off with the proceeds. A swindler who moves along the street cheating housewives out of individual petty amounts similarly ought to be punished for the aggregate misconduct, even though both the place and the victim change with each transaction.¹¹

The commentary to the Alaska Revised Criminal Code indicates that the legislature intended to follow the Model Penal Code, aggregating separate thefts where a course of conduct is "calculated enough" to suggest a need for felony punishment.¹²

We have not issued a published decision holding that a jury finding of a single "course of conduct" is required when the state aggregates separate thefts. Virtually all the jurisdictions that have considered this issue (and that generally follow the Model Penal Code approach) have concluded that a jury must decide whether separate thefts are part of...