Reyes v. State, A-13144

CourtCourt of Appeals of Alaska
Writing for the CourtTERRELL JUDGE.
PartiesTRAVIS LON REYES, Appellant, v. STATE OF ALASKA, Appellee.
Decision Date29 June 2022
Docket NumberA-13144

TRAVIS LON REYES, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13144

Court of Appeals of Alaska

June 29, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge Trial Court No. 3AN-16-02171 CR.

Rachel E. Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

MEMORANDUM OPINION

TERRELL JUDGE.

Travis Lon Reyes appeals his conviction for second-degree theft for stealing over $750 in merchandise from his employer over the course of several weeks,

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from mid-February 2016 to March 7, 2016.[1] Reyes claims that the trial court committed plain error when it failed to instruct the jury that, in order to convict, it needed to: (1) be unanimous as to the specific acts of theft that he committed and (2) find that the thefts were committed as part of a single course of conduct. The State concedes error but argues that the omission of each instruction was harmless beyond a reasonable doubt.

We agree that the failure to provide these instructions to the jury was obvious error. And because we conclude that the failure to give a single-course-of-conduct instruction was not harmless beyond a reasonable doubt as to all the acts of theft, we reverse Reyes's conviction.

However, we also conclude that the failure to give both the factual unanimity and single-course-of-conduct instruction was harmless beyond a reasonable doubt as to the items Reyes took on one specific date . Moreover, the value of the items taken on that date exceeded the $250 threshold for third-degree theft - a charge on which the jury was instructed as a lesser included offense.[2] We therefore give the State the option on remand to either re-try the second-degree theft charge or elect entry of judgment for third-degree theft (with resentencing). If Reyes is retried, the court must give both a factual unanimity instruction and a single-course-of-conduct instruction to the jury.

Background facts and proceedings

In January 2016, Travis Reyes began working as a parts associate at Alaska Mining and Diving Supply, a company that sells and services snowmachines and outdoor

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gear. He began taking items from the Anchorage store about a month after he started working there. Reyes first took a Ski-Doo snowmachine jacket in mid-February 2016. On different occasions over the next few weeks, he took a Klim jacket and gloves, a balaclava, two snowmachine hood straps, and handlebar pads.

Reyes's last thefts took place on March 7, 2016. Reyes loaded a box with items taken from the store - a gas can, snowmachine belts, a hot dogger,[3] and scratchers[4] - put a postage label listing his Anchorage address (but with his girlfriend as the addressee), and took the box home in his truck. These items totaled $384.96, not including the cost of postage. Another employee, suspicious of the package because the store did not usually ship locally, notified a supervisor.

Later that day, the store's sales manager, Geoff Boyda, confronted Reyes, who admitted to taking items without paying for them. At Boyda's request, Reyes compiled a list of all the items he had taken.

Boyda then had an employee look up each of the parts taken and determine the current retail price of each part. He compiled this into a second list, which Reyes signed.

At trial, Boyda testified that, as to two of the parts (the hood straps and handlebar pads), store employees were unable to determine the exact itemthat was taken. But he stated that the retail value of the remainder of the items was $879.92. A parts manager from the store accompanied Reyes to his home to retrieve the items, some of which were returned to the store (albeit no longer in their original packaging).

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At this point, the police were contacted and Anchorage Police Department Officer Nicholas Saldana responded to the call. Officer Saldana spoke with Boyda, who gave him a copy of one of the lists of stolen items that Reyes had signed. Officer Saldana then went to Reyes's residence and spoke to him about the theft allegations. Reyes admitted that he had taken items from Alaska Mining and Diving, brought them home and used them, and intended to keep them. Officer Saldana arrested Reyes for theft.

Reyes was indicted on one count of second-degree theft for committing theft of property with a value of $750 or more.[5]

At trial, Reyes's defense was that he lacked the requisite culpable mental state of intent to deprive Alaska Mining and Diving of the merchandise without paying for it. He claimed that he simply thought that his actions represented a permissible use of a benefit that allowed Alaska Mining and Diving employees to obtain merchandise and put it on a charge account that would be paid back out of their paychecks.

During his testimony, Boyda explained the basics of the charge account system. Boyda stated that an employee who has worked for Alaska Mining and Diving for some probationary period (Boyda testified it was either ninety days or six months) becomes eligible for a charge account, which the employee can use to purchase an item from the store and pay for the item over time from their paychecks. Boyda admitted that there had been exceptions to the probationary period rule, and that Reyes in fact had a charge account opened for servicing his snowmachine before he had worked there for ninety days.

Reyes testified that after he had been working for Alaska Mining and Diving for about a month, i.e., in February 2016, he brought in his own snowmachine

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to be serviced. According to Reyes, he obtained an employee charge account from the service department manager, and was charged for the servicing of his snowmachine through this account. Reyes testified that he did not receive any training about the charge accounts, but heard about them from other employees. From the information Reyes had heard, the accounts seemed relatively flexible and employee-controlled. Reyes claimed that he did not initially want to use this account for anything other than his snowmachine, because he was trying to repair his credit and did not want to open or heavily rely on any credit accounts. But he testified that, after losing his jacket in midFebruary 2016, he needed a new winter jacket and thought that taking the Ski-Doo snowmachine jacket and putting it on his employee charge account was his best course of action.

Reyes did not offer any explanation as to why he took additional items over the next two weeks - the Klim jacket and gloves, balaclava, snowmachine hood straps, and handlebar pads. He simply incorporated them into his general defense - that he did not take them without intending to pay for them and...

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