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Lawrence v. State (1/27/2012) ap-2344

Lawrence v. State (1/27/2012) ap-2344

                                                 NOTICE 

        The text of this opinion can be corrected before the opinion is published in the Pacific 

        Reporter.   Readers are encouraged to bring typographical or other formal errors to 

        the attention of the Clerk of the Appellate Courts. 



                                303 K Street, Anchorage, Alaska  99501
 

                                          Fax:   (907) 264-0878
 

                          E-mail:   corrections @  appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



BETH K. LAWRENCE,                                 ) 

                                                  )        Court of Appeals No. A-10757 

                          Appellant,              )        Trial Court No. 4FA-09-2731 CR 

                                                  ) 

             v.                                   ) 

                                                  )                 O P I N I O N 

STATE OF ALASKA,                                  ) 

                                                  ) 

                          Appellee.               ) 

                                                  )         No. 2344 - January 27, 2012 



                 Appeal     from    the  Superior    Court,   Fourth    Judicial   District, 

                 Fairbanks, Paul R. Lyle, Judge. 



                 Appearances:      Chad    Flanders,   Attorney    at  Law,   Robert    Lee 

                 Griffin and Dan Bair, Assistant Public Advocates, and Rachel 

                 Levitt and Richard Allen, Public Advocates, Anchorage, for the 

                 Appellant. Kenneth M. Rosenstein, Assistant Attorney General, 

                 Office of Special Prosecutions and Appeals, Anchorage, and John 

                 J. Burns, Attorney General, Juneau, for the Appellee. 



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



                 BOLGER, Judge.
 

                 MANNHEIMER, Judge, concurring.
 



                 Beth K. Lawrence stole a purse that contained two "access devices" as 



defined in AS 11.81.900(b)(1) - a debit card and a social security card. Although she 



was not charged with stealing the purse itself, she was charged with two counts of theft 



in the second degree for stealing the access devices. A jury convicted her of both counts. 


----------------------- Page 2-----------------------

                 On appeal, Lawrence claims that the superior court erred when it instructed 



the jury that, when the object of a theft is a container (in this case, a purse), the thief need 



not know in advance the contents of the container, and the jury may, but need not, infer 



that the person intended to deprive the owner of the container's contents. She claims that 



the   superior   court   should   have   granted   her   request   for   a   mistrial   based   on   this   jury 



instruction. She also claims that there was insufficient evidence to prove that she acted 



with the requisite culpable mental state for second-degree theft; that the second-degree 



theft statute is unconstitutionally vague; and that, under the prohibition against double 



jeopardy, she cannot properly be convicted of two counts of theft for stealing one purse. 



                 For the reasons set out here, we affirm Lawrence's convictions. However, 



we remand the case to the superior court so that the judgment may be corrected to reflect 



that Lawrence's two convictions merge. 



         Background 



                 On July 21, 2009, Lawrence entered a store in Fairbanks and, while there, 



stole the purse of a store employee. The purse contained the victim's debit card and her 

social security card. These cards were "access devices" as defined by AS 11.81.900(b)(1).1 



                                                                                2 

Stealing an access device is second-degree theft, a class C felony.  Lawrence was charged 



with two counts of this offense, one charge for each stolen access device. She was not 



separately charged with stealing the victim's purse. 



         1   Under this statute, "'access device' means a card, credit card, plate, code, account 



number, algorithm, or identification number, including a social security number, electronic 

serial   number,   or   password,   that   is   capable   of   being   used,   alone   or   in   conjunction   with 

another access device or identification document, to obtain property or services, or that can 

be used to initiate a transfer of property." AS 11.81.900(b)(1). 



         2   AS 11.46.130(a)(7), (c). 



                                                    - 2 -                                              2344
 


----------------------- Page 3-----------------------

                When discussing jury instructions, Lawrence's attorney took the position 



that the State had to prove that Lawrence specifically intended to steal each access device, 



not just the purse. Superior Court Judge Paul R. Lyle rejected this position, and warned 



Lawrence's attorney that if he made this argument to the jury, the judge would tell the 



jury to ignore it. Judge Lyle told the attorneys that if they misstated   the law during 



argument, the jury would be told to disregard any misstatement. 



                Despite     these   warnings,    Lawrence's      attorney    argued   to  the  jury   that 



Lawrence did not have the requisite state of mind to steal the access cards because she 



did not know they were in the victim's purse. The attorney asked the jury to consider: 



"Did she have the conscious objective when she grabbed that purse to steal those access 



devices?" 



                Lawrence's attorney also argued that Lawrence was "after cash," not access 



devices. "She stole the purse, but she didn't grab that purse with the intent of stealing 



access devices."  The attorney noted that the trooper never asked Lawrence if she knew 



the access cards were in the purse and that she was depriving the victim of her debit card 



and social security card. The attorney concluded that "this [case] is about whether or not 



she intended to take those access devices." 



                After arguments, Judge Lyle - outside the jury's presence - found that 



Lawrence's argument was contrary to the law and that it was necessary to give the jury 



a curative instruction. Over Lawrence's objection, the court instructed the jury that, 



                 [w]here   the    object   of   an   alleged   theft   is   a   container,   an 

                inference may, but need not be, drawn that the defendant acted 

                with the intent to deprive the owner of its contents whatever 

                they might be.      It is not necessary that the offender know in 

                 advance the contents of the container. 



                                                  -  3 -                                            2344
 


----------------------- Page 4-----------------------

                 After the jury began its deliberations, Lawrence asked for a mistrial, asserting 



that the curative instruction misstated Alaska law. Judge Lyle denied the request for a 



mistrial. Lawrence now appeals. 



        Discussion 



                 The instruction on theft of a container was valid under the 

                facts of this case and is supported by case law from other 

                jurisdictions . 



                 Lawrence claims Judge Lyle erred when he instructed the jury on theft of 



the contents of a container. She contends that the jury instruction "runs afoul" of the rule 



that "instructions to a jury, taken as a whole, must result in the jury understanding that 



it was the State's burden to prove ... beyond a reasonable doubt ... every element of the 



offenses charged against the defendant, including all culpable mental states." 



                 Lawrence argues that Judge Lyle should have reminded the jury when he 



gave the curative instruction that it was the State's burden to prove its case beyond a 



reasonable doubt. She also asserts that the judge should have instructed the jury that, while 



it could reasonably infer Lawrence's intent to steal the contents of the purse from the fact 



that she intentionally stole the purse, it should also weigh any evidence showing a contrary 



intent. 



                 Our review of the record indicates that the jury was repeatedly instructed 



- both before and after this curative jury instruction - that the State had the burden of 



proving that Lawrence intended to take the property of another. The jury was also told 



that   it   should   consider   all   the   evidence   when   reaching   its   verdict.   And   the   curative 



instruction informed the jury that it may, but need not, infer Lawrence's intent to steal 



the contents of the purse from the fact that she stole the purse. We conclude Judge Lyle 



was not required to provide additional instructions to the jury on this issue. Because we 



                                                   - 4 -                                             2344
 


----------------------- Page 5-----------------------

find no error in the court's instruction, we uphold the court's decision to deny Lawrence's 



motion for a mistrial. 



                 Lawrence also argues that it was improper to tell the jury that when a thief 



steals a container, the thief can be convicted of stealing the contents, even though the thief 



does     not  know     the   container's    contents     in  advance.    But    other   jurisdictions    have 



consistently ruled that a person who steals a container may also be convicted of theft for 



stealing the container's contents, even when the thief did not know the nature of those 



            3 

contents. 



                 We reached a similar conclusion in an analogous circumstance in Ortberg 

v. State .4 In that case, the defendant was charged with second-degree criminal mischief 



for intentionally damaging property valued at $500 or more.5 We concluded that the 



         3   See, e.g., Chadwell v. State, 822 S.W.2d 402, 403 (Ark. App. 1992) (concluding 



that knowledge of the contents of a stolen jacket was not necessary to sustain the conviction 

for theft of a credit card that was located within a wallet in one of the jacket pockets); People 

v. Campbell, 133 Cal. Rptr. 815, 824 (Cal. App. 1976) ("[The] defendant intended to steal 

the purse. ... [W]e are of the view that he intended to steal the contents of the purse, in this 

case the gun. We conclude that the defendant was properly convicted of grand theft of the 

gun."); People v. Earle , 35 Cal. Rptr. 265, 276 (Cal. App. 1963) ("What is important here 

is that the defendant intended to steal the bag and its contents. ... It is not necessary that he 

knew its contents in advance."); State v. Solway, 88 P.3d 784, 787 (Idaho App. 2004) ("[T]he 

theft statute required [the state] to prove 'that the defendant knew his possession of the stolen 

items was not authorized; it [did] not require the State to prove that the defendant inventoried 

his loot before being apprehended.'"); People v. Moneyham , 753 N.E.2d 1229, 1232 (Ill. 

App. 2001) ("Where the object of the theft is a purse, ... a natural inference arises that the 

offender acted with the intent to deprive the owner of its contents, whatever they might be."); 

Commonwealth v. Schraffa, 308 N.E.2d 575, 576 (Mass. App. 1974) (finding the jury could 

conclude that the defendant intended to steal whatever the truck contained even though its 

contents may have been unknown to him when the truck was taken). 



        4    751 P.2d 1368 (Alaska App. 1988). 



         5   Id . at 1374. 



                                                    -  5 -                                              2344
 


----------------------- Page 6-----------------------

defendant could be convicted of criminal mischief based on proof that he intentionally 



damaged property of the required value, and that the State was not required to prove that 

the defendant was aware of the monetary value of the damage.6 



                 We note that it is common knowledge that people routinely carry credit cards, 



debit cards, and items such as social security cards in purses and wallets. Consequently, 



we conclude that when Lawrence stole the victim's purse, she had to realize that she would 



likely be stealing some of these access devices. We need not reach the issue of whether, 



under circumstances not presented in this case, such an instruction might unfairly make 



a thief liable for stealing a container with unusual property inside. 



                 The evidence was sufficient to prove that Lawrence intended 

                 to deprive the owner of this property. 



                 Lawrence next claims that there was insufficient evidence to prove that she 



acted with the requisite culpable mental state for second-degree theft. This argument arises 



from Lawrence's claim that the State was required to prove that she specifically intended 



to steal the access devices. 



                 When we rule on a claim of insufficient evidence, we must consider the 



evidence   in   the   light   most   favorable   to   the   jury's   verdict   and   determine   whether   a 

fair-minded juror could find guilt beyond a reasonable doubt.7   Viewing the evidence in 



this fashion, the evidence shows that Lawrence had the specific intent to deprive another 



of property. 



        6   Id . 



        7    Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010) (citing Morrell v. State , 



216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State , 767 P.2d 1163, 1167 (Alaska App. 

1989)). 



                                                   -  6 -                                                2344 


----------------------- Page 7-----------------------

                 Under the Alaska Statutes, a person commits theft if the person obtains the 

property of another person with the intent to deprive the other person of the property.8 



"Depriv[ing] another of property" includes "dispos[ing] of the property in such a manner 



or   under   such   circumstances   as   to   make   it   unlikely   that   the   owner   will   recover   the 



             9 

property." At trial, Alaska State Trooper John Ryan testified that Lawrence admitted to 



him that she had stolen the purse. Lawrence also admitted that she had thrown the purse 



into a vacant lot near the house where she was staying. The trooper looked in the area of 



the vacant lot and found several items from the purse, including the victim's debit card 



and her social security card. The social security card was torn into pieces. The trooper 



testified that it was unlikely the victim could have located her purse and its contents in 



the vacant lot. 



                 A reasonable juror could have concluded from this evidence that Lawrence 



took these access cards when she stole the purse and that she intentionally discarded the 



cards in an area where   the victim was unlikely to recover them. This evidence was 



sufficient to support the verdicts. 



                 The second-degree theft statute is not unconstitutionally vague. 



                 Lawrence        next     claims     that   the    second-degree        theft    statute    is 



unconstitutionally vague. She asserts that the statute fails to "explicitly inform [people] 



that the conduct of stealing [a container], with no intent to steal an access device contained 



therein," is punishable as second-degree theft if the container happens to contain an access 



device. 



         8   AS 11.46.100(1). 



        9    AS 11.46.990(8)(B). 



                                                   -  7 -                                                2344 


----------------------- Page 8-----------------------

                 A statute is unconstitutionally vague if it does not provide adequate notice 

to the ordinary person of what conduct is prohibited.10 A statute provides adequate notice 



if   it   "affords   a   reasonable   warning   of   the   prescribed   conduct   in   light   of   common 

understanding and practice." 11 Under the penalty scheme for theft, a person is generally 



punished based on the value of the stolen property. 12 But the language of the theft statutes 



plainly provides that access devices and firearms are exceptions to this pattern. The penalty 



for stealing these items does not depend upon their value. Instead, it is a felony to steal 

this type of property.13 



                 This   statutory   scheme   provides   a   reasonable   warning   of   the   prohibited 



conduct in light of common understanding and practice. It is commonly known that people 



carry items such as credit cards and debit cards in their purses and wallets. It is also 



commonly known that if a person steals a purse or a wallet, the person has deprived 



another person of any property inside the purse or wallet. We conclude that Lawrence 



has failed to show that the theft statutes did not afford her reasonable warning that her 



conduct was punishable as a felony. 



        10       Treacy v. Anchorage, 91 P.3d 252, 260-61 (Alaska 2004); Stock v. State, 526 



P.2d 3, 8 (Alaska 1974). 



        11      Halliburton Energy Servs. v. State, Dep't of Labor , 2 P.3d 41, 51 (Alaska 



2000) (citation omitted). 



        12      See, e.g., AS 11.46.120(a); AS 11.46.130(a)(1). 



        13      See AS 11.46.130(a)(2), (7). 



                                                  -  8 -                                               2344 


----------------------- Page 9-----------------------

                The    judgment     should    be   corrected    to  show    that  these 

                convictions merge. 



                Lawrence's final claim is that, under the prohibition against double jeopardy, 



she cannot be convicted of two counts of theft of access devices when she stole the two 



devices from the same victim at the same time - that is, when she stole the victim's purse. 



At the sentencing hearing, Lawrence's counsel asserted that the superior court should 



merge the sentences for the two theft counts. The State's attorney agreed. Later, Judge 



Lyle stated that the two offenses would merge into a single theft conviction. But the 



written judgment shows two convictions with separate sentences, imposed concurrently. 



                At   oral   argument,   the   State   did  not   oppose   a  remand    to  correct   this 



inconsistency. We accordingly remand this matter so that the judgment may be corrected 



to indicate that the two offenses have merged and to show a single sentence for this one 



conviction. 



        Conclusion 



                We REMAND the case to the superior court to correct the judgment to show 



a single sentence for one merged conviction. We AFFIRM the judgment of conviction 



in all other respects. 



                                                 -  9 -                                           2344
 


----------------------- Page 10-----------------------

MANNHEIMER, Judge, concurring. 



                 The primary issue in this appeal is whether, when a thief steals a container, 



the thief can be lawfully convicted of stealing the items within that container, even though 



the thief was ignorant of the contents of the container at the time of the taking. 



                 As Judge Bolger's lead opinion explains, several courts have held that, in 



these situations, the government need not prove that the thief was subjectively aware of 



the precise contents of the container.   Rather, once the government proves that the thief 



stole the container, it automatically follows that the thief is guilty of stealing all of the 



items that one might reasonably expect to find inside a container of that sort. 



                 Lawrence's case, however, can be resolved on a narrower basis. Lawrence's 



jury was not instructed that, if Lawrence was guilty of stealing the purse, then she was 



automatically guilty of also stealing whatever was inside the purse.                  Rather, the jurors 



were instructed that they could find Lawrence guilty of stealing the contents of the purse 



- i.e., guilty of intending to appropriate the contents of the purse to her own benefit, or 



guilty of intending to deprive the victim of the contents of the purse - if the evidence 



supported either of these conclusions. 



                 As explained in the lead opinion, the evidence showed that, after Lawrence 



stole the purse, she threw the purse away in a place where the owner was unlikely to 



recover it.  In other words, even though Lawrence's immediate objective may have been 



to steal cash from the purse, she "deprived" the victim of the entire contents of the purse. 



(Under the definition of "deprive" codified in AS 11.46.990(8)(B), a person deprives an 



owner   of   property   if   they   "dispose   of   the   property   in   such   a   manner   or   under   such 



circumstances as to make it unlikely that the owner will recover the property".) 



                                                  -  10 -                                            2344
 


----------------------- Page 11-----------------------

                Moreover, the evidence supported the conclusion that Lawrence examined 



the contents of the purse before she threw the purse away - because the victim's social 



security card was found torn to pieces. 



                Thus, the evidence supported the conclusion that, by the end of this criminal 



episode, (1) Lawrence was subjectively aware of the individual items contained in the 



purse - in particular, the two access devices - and (2) Lawrence intentionally deprived 



the   owner   of   these   items   by   disposing   of   the   purse   (and   its   contents)   "under   such 



circumstances as to make it unlikely that the owner [would] recover the property". 



                Because of the case law suggesting that a thief who steals a container is 



automatically guilty of stealing the contents as well (even when the thief remains ignorant 



of those contents), it is possible that Lawrence received a more favorable jury instruction 



on this issue than she was entitled to. But we need not resolve that question, because the 



evidence in Lawrence's case supports the conclusion that Lawrence was aware of the 



contents of the purse, and that she disposed of the purse and its contents with the intent 



to deprive the owner of this property. 



                                                 -  11 -                                           2344
 

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