Williams v. State, 5993

• Decision Date: 23 July 1982
• Docket Number: No. 5993,5993
• Parties: Travis Dean WILLIAMS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 603

648 P.2d 603

Travis Dean WILLIAMS, Appellant, v. STATE of Alaska, Appellee.

No. 5993.

Court of Appeals of Alaska.

July 23, 1982.

Dick L. Madson, Cowper & Madson, Fairbanks, for appellant.

Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Travis Dean Williams was convicted based upon an indictment which charged him with second degree theft in violation of AS 11.46.130(a). ¹ Williams has appealed his conviction to this court, raising several issues. We affirm.

Northwestern Construction Company owns a yard in Fairbanks where the Company had stored approximately 275 ripper teeth, ² along with supplies other equipment and materials. David McCarter, supervisor of the yard, testified that on July 11, 1980, in the course of his weekly yard inspections he found that the ripper teeth were gone. In an attempt to locate the missing ripper teeth he began calling various construction businesses in town where he thought someone might try to sell them. One of the places he called, Jackovich Tractors, told him that they had recently purchased some new ripper teeth from Travis Dean Williams. McCarter assumed that he had found some of the ripper teeth and reported the theft to the Alaska State Troopers. During their investigation of the case the troopers found that on July 9, 1980, Green Construction Company had also purchased a large quantity of ripper teeth from Williams. Trooper Rod Harvey later interviewed Williams, who indicated that he had sold the ripper teeth from the Northwestern Construction Company yard to both Green and Jackovich.

The grand jury issued an indictment against Williams charging him with second degree theft. At trial Williams admitted that he had taken and sold the ripper teeth, but defended on the ground that he was given permission to do so. Williams testified that David McCarter asked him to sell the ripper teeth for him. According to Williams, McCarter had indicated to him that he had authority over all of the items in the yard. Williams claimed that McCarter gave him a key to the lock for the yard where the ripper teeth were located.

The state introduced evidence to support the theory that Williams had no authority or permission to either take or sell the ripper teeth. McCarter testified that he had never given anyone permission to either take or sell the ripper teeth. McCarter also stated that prior to his inspection on July 11, 1980, he had no knowledge of the key that Williams claimed McCarter had given him.

On January 29, 1981, the jury convicted Williams of second degree theft. Based upon this conviction Williams was sentenced to serve five years with three years suspended. In addition, Williams was sentenced to pay a $5,000 fine.

Williams first contends that the indictment charging him with theft did not give him proper notice of the offense with which he was charged. The indictment ³ charged Williams with theft of the ripper teeth, but did not allege a specific theory of theft. ⁴ Williams claims that the evidence presented at the grand jury showed that the state's theory was that Williams had personally stolen the ripper teeth and that this is the charge against which he was prepared to defend. However, at the close of the evidence at trial the state offered jury instructions on the charge of theft by receiving ⁵ and the judge instructed only on this theory of theft. Williams was ultimately convicted on the theft by receiving theory.

We believe that the indictment adequately informed Williams of the offense with which he was charged and therefore find no due process violation. The different theories of theft are set out in AS 11.46.100. ⁶ AS 11.46.110(b) provides that:

(b) An accusation of theft is sufficient if it alleges that the defendant committed theft of property or services of the nature or value required for the commission of the crime charged without designating the particular way or manner in which the theft was committed.

The commentary to the code which discusses AS 11.46.110, quoting 1978 Senate Journal Supp. No. 47, at 32 (June 12, 1978), explains that:

Section 110 specifies the procedural consequences resulting from the consolidation of theft offenses. Under the Code a charge of theft is sufficient without designating the particular means by which the property or services was obtained. The section serves to underscore one of the chief aims of the article: elimination of the confusing distinctions among the most typical theft offenses.

The State of Oregon, which has a statute similar to AS 11.46.110(b), has upheld indictments that merely allege theft and do not specify the theory of theft that is charged. State v. Jim, 13 Or.App. 201, 508 P.2d 462, 463-65 (1973). We see no reason not to follow the decision of the Oregon court in Jim and fulfill the clear legislative purpose of AS 11.46.110(b). The common law has long been plagued with confusing and narrow distinctions between various forms of larceny. The criminal code attempts to eliminate some of these problems by consolidating several larceny offenses in AS 11.46.100 under the single offense of theft. With this statutory scheme a person charged with theft is put on notice that he may be convicted of theft under different theories.

The accused is not without remedies in finding out more specifically the crime with which he is charged. He has access to the record of the grand jury proceeding under Alaska Rule of Criminal Procedure 6(m). ⁷ An accused can also ask for a bill of particulars under Alaska Rule of Criminal Procedure 7(f). ⁸ Liberal discovery of the state's case is also permitted under the provisions of Alaska Rule of Criminal Procedure 16. Given these liberal discovery rules, we conclude that an accused does have the ability to obtain adequate discovery of the state's case and to get adequate notice of the state's theory or theories of prosecution. We therefore find no merit to Williams' attack on the indictment. ⁹

In a related argument, Williams contends he was unfairly surprised when the jury was ultimately instructed on the theory that Williams had committed theft by receiving stolen property. Williams claims that since he was charged in the indictment generally with theft and all the evidence, including his own admissions that he had taken the property, indicated that the state's theory of theft had to be that Williams himself had stolen the property, he had prepared to defend against a charge that he had stolen the property. We believe the record indicates that Williams was given adequate notice of the state's theory that he was guilty of theft by receiving. First, the theft statute itself indicates that theft by receiving is one of the possible theories of theft. AS 11.46.100. Second, the courts in this state have held that it is permissible to charge the person who stole property with receiving or concealing that stolen property, at least as long as he is not convicted of both larceny and receiving or concealing stolen property. Sundberg v. State, 636 P.2d 619, 621 (Alaska App.1981); Pierce v. State, 627 P.2d 211, 218-20 (Alaska App.1981); Hayes v. State, 581 P.2d 221 (Alaska 1978). Third, the grand jury record indicates that Williams had notice that the state was proceeding, at least in part, on the theory that Williams was guilty of theft by receiving. At both the beginning and end of the grand jury proceeding the district attorney informed the grand jurors that in order to indict Williams for theft they did not have to find that he actually took the ripper teeth; they could also find that he committed theft by receiving stolen property knowing that it was stolen. We find that Williams' claim that he was unfairly surprised by the fact that the jury was instructed on the theft by receiving theory has no merit.

Williams also contends that no evidence was presented at trial on which the jury could have been instructed on a theory that he was guilty of theft by receiving. He argues that the court should have granted his motion for judgment of acquittal on the state's theft by receiving theory. Williams' basic argument is that the testimony established that he was the person who took the property. He therefore contends that he could only be convicted on a theory that he was the person who took the property, not on a theory that he was guilty of theft by receiving. Hayes v. State, 581 P.2d 221 (Alaska 1978), seems to dispose of Williams' contention. In that case the supreme court held that it was proper, under the former receiving or concealing stolen property statute, ¹⁰ to convict a person of that offense even though the evidence tended to show that he was the thief and had not received the property from anyone. Id. at 223. We followed that decision in two recent cases, Sundberg v. State, 636 P.2d 619, 620-21 (Alaska App.1981), and Pierce v. State, 627 P.2d 211, 219-20 (Alaska App.1981). Those two cases were also decided under the former criminal code. However, the current code section is substantially the same as the former code section and we therefore find that Hayes is controlling on our interpretation of the current code. ¹¹ We conclude the trial court did not err in instructing the jury on a theft by receiving theory and did not err in refusing to grant Williams' motion for judgment of acquittal. ¹²

Williams also objects to the instruction which the trial court gave on theft by receiving, arguing that the instruction was erroneous because the term "recklessly" was not defined for the jury. ¹³ We have reviewed the record and find that although Williams objected to the theft by receiving instruction his objection was on the ground that the evidence was insufficient to support a theft by receiving instruction. We conclude that Williams did not properly preserve his objection under Alaska Rule of Criminal Procedure 30(a). ¹⁴ Therefore Williams...