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Morris v. State (9/26/2014) ap-2429

Morris v. State (9/26/2014) ap-2429

                                                       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  



EARL TYRONE MORRIS,                                      )  

                                                         )            Court of Appeals No. A-11178 

                                      Appellant,         )            Trial Court No. 3AN-11-2140 CR  

                                                         ) 

                  v.                                     )                    O  P  I  N  I  O  N  

                                                         )  

STATE OF ALASKA,                                         )  

                                                         )  

                                      Appellee.          )             No. 2429 - September 26, 2014  

                                                         )  



                     ppeal   from   the   Superior   Court,   Third   Judicial   District,  

                   A                                                  

                   Anchorage, Jack Smith, Judge.  



                   Appearances: David D. Reineke, under contract with the Alaska  

                   Public Defender Agency, and Quinlan Steiner, Public Defender,  

                                                                        

                   Anchorage,  for  the  Appellant.    Terisia  Chleborad,  Assistant  

                   Attorney General, Office of Special Prosecutions and Appeals,  

                                                           

                   Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                   for the Appellee.  



                   Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                   District Court Judge.*  

                                                  



                   Judge ALLARD.
  

                   Chief Judge MANNHEIMER, concurring.
  



     *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                         Earl Tyrone Morris was convicted of second-degree theft after he stole a   



Canada Goose parka from an outfitter in Anchorage.  Under the law in effect at the time  



of Morris's offense, a person committed second-degree theft, a class C felony, if the   



                                                                                            1  

person stole property valued at $500 to $25,000.   



                         Morris argues that there was insufficient evidence to support his conviction.  



                                                                                                                                     

Although he characterizes his claim as an attack on the sufficiency of the evidence the  



                                                                                                                                           

State presented at trial, his real dispute concerns the legal definition of the crime of  



                                      2  

second-degree theft.                                                                                                                  

                                          Specifically, Morris argues that, for purposes of determining the  



                                                                                                                                         

degree of theft he committed, the "market value" of the stolen property must be based  



                                                                                           

on the property's wholesale price, not its retail price.  Morris asserts that he was only  



guilty of third-degree theft, a misdemeanor, because the wholesale price of the stolen  

parka was only $330.3  



                         Resolving  Morris's  claim  hinges  on  the  proper  legal  interpretation  of  



AS 11.46.980(a), the statute that defines the "value" of stolen property as "the market  

value of the property at the time and place of the crime."4  



       1     Former AS 11.46.130(a)(1) (2012); AS 11.46.980(a) (defining the "value" of property  



as its "market value").  In 2014, the Alaska Legislature amended AS 11.46.130 to define  

second-degree theft as the theft of property valued between $750 and $25,000.  Ch. 83,  4,   

SLA 2014.  This provision went into effect on July 1, 2014 and does not apply retroactively.             

Ch. 83,  36, 42, SLA 2014.  



      2      See Chief Judge Mannheimer's concurrence, infra (explaining the difference between  



these types of appellate claims); see also Collins v. State                                        , 977 P.2d 741, 751-52 (Alaska App.  

 1999) (Mannheimer, J., concurring) (same).  



      3      See  former AS 11.46.140(a)(1) (2012) (defining third-degree theft as the theft of  



property or services valued at $50 or more but less than $500).  



      4      Under AS 11.46.980(a), if the market value cannot reasonably be ascertained, the  

                          

                                                                                                                                           (continued...)  



                                                                                2                                                                          2429
  


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

                   As we explain in this opinion, the term "market value" has a recognized  



meaning at common law:   the price at which the property would change hands in an  

                                                          



arm's length transaction between a willing seller and a willing buyer who are aware of  

                                                                                 



the pertinent facts. We therefore reject Morris's contention that the term "market value"  

                                                         



has no ascertainable legal meaning.   



                   Additionally, in cases involving the theft of retail merchandise, the general  



rule is that the retail price of an item is prima facie  evidence of its market value.  Here,  

                               



the State presented evidence that the retail price range of the parka was from $660 to  

                                                                                                                   



$740.  This means that the State's evidence (if believed) was legally sufficient to prove  

                                                  



second-degree theft.  We therefore affirm Morris's conviction.   



                   Morris  separately appeals his 2-year sentence as excessive.  As Morris  

                               

recognizes, we do not have jurisdiction to hear this claim.5  

                                                                                       We therefore forward this  



portion of Morris's appeal to the Alaska Supreme Court under Appellate Rule 215(k).  



          Factual and procedural background  



                   On  February  15,  2011,  a  man  walked  into  6th  Avenue  Outfitters  in  



Anchorage wearing a black Canada Goose Resolute parka - the same type of parka  



                                                                                                                 

carried by the outfitter.  An employee directed the man to the men's side of the store  



                                                                                                         

where the man tried on one or more parkas and then left the store. About fifteen minutes  



                                                                          

later, a store employee found a used Canada Goose parka lying on the floor that appeared  



                      

to be identical to the parka worn by the man.  Employees then discovered an empty space  



     4    (...continued)  



value of the stolen property is interpreted as the cost of replacement of the property  

within a reasonable time after the crime.  



     5    See AS 22.07.020(b); Alaska R. App. P. 215(a)(1).  



                                                              3                                                          2429  


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

in the rack holding the Canada Goose parkas and concluded that a used parka had been  

                                                                  



switched for a new one.  They searched the used parka and found an Alaska Quest card  



in the name of Earl T. Morris.  



                   About a week later, an employee of the outfitter spotted the man who had  

                                                                                          



switched the parka.  The general manager and another employee conducted a citizen's  

                                                                                               



arrest of the man, who was later identified as Morris.  Morris was wearing a new black  

                           



Canada Goose Resolute parka at the time of his arrest.  



                   At trial, the  general manager of 6th Avenue Outfitters testified that on  



February 15, 2011, the store was selling the stolen parka for $659.95.  He stated that  

                                                  



Canada Goose charged a wholesale price of $330 and suggested a retail price of $675,  

                                                                                                         



and that Canada Goose did not want its authorized retailers to sell its products for less  



than the "keystone," which is essentially double the wholesale price.  



                   An investigator with the Public Defender Agency testified that she searched  



the Internet on August 15, 2011, for the type of parka allegedly stolen by Morris and  

                                                                                



found a website selling the parka for $220.98.  The State countered this assertion with  

                                   



evidence that the website the investigator had visited was not an authorized retailer of  



Canada Goose parkas and that the low-priced parka was probably a counterfeit.  The  



State also presented evidence that Cabela's and Altitude Sports, two authorized retailers  



of Canada Goose parkas, advertised retail prices of $739 and $702 for their parkas.  



                   The jury subsequently found Morris guilty of second-degree theft.  This  

                                                                                       



appeal followed.  



                                                             4                                                        2429
  


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

          The legal meaning of "market value"  



                   As explained earlier, former AS 11.46.130(a)(1) defined second-degree  



theft as theft of property with a value of $500 to $25,000.  Alaska Statute 11.46.980(a)  

                                                                    



further provides:   



                   Whenever it is necessary to determine the value of property  

                                                                            

                    [under Chapter 46 - Offenses Against Property], that value  

                                                    

                   is the market value of the property at the time and place of the  

                   crime  unless  otherwise  specified  or,  if  the  market  value  

                   cannot reasonably be ascertained, the cost of replacement of  

                                                                           

                   the property within a reasonable time after the crime.  



The term "market value" is not further defined in the criminal code.   



                   Morris contends that the lack of a specific statutory definition for "market  

                                                                                                              



value" makes the term ambiguous.  He  argues that, given this ambiguity, the term should  

                                                                                        



be construed, under the rule of lenity, in the light most favorable to him.  In particular,  

                                              



Morris argues that in cases where an item of property is stolen from a retail store, the  

                                 



"market value" of the property must, as a matter of law, be the wholesale price  the  



retailer paid to acquire the property, because that is the lowest possible valuation of the  

                                                                                                        



property.  



                   But the doctrine that ambiguous penal statutes must be construed in the  



defendant's favor only comes into play if the statute remains ambiguous after it has been  

                                                            

subjected to recognized methods of statutory construction.6  

                                                                                         Where, as here, a statute  



employs  a  term  that  has  a  recognized  definition  at  common  law,  the  legislature  is  



     6    De Nardo v. State , 819 P.2d 903, 907 (Alaska App. 1991).  



                                                              5                                                          2429  


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

presumed to have used the term in its common-law sense, unless the legislative history  

demonstrates that some other meaning was intended.7  

                                                                                        



                      "Market value" or "fair market value" is a legal term with a well-established  



meaning at common law:  it is "the amount at which the property would change hands,  

                                                                                      



between a willing buyer and a willing seller, neither being under compulsion to buy or  

                                                                                                          

sell and both having knowledge of the relevant facts."8                                                     

                                                                                        The Alaska courts have used this  



                                                                                                           9 

                                                          

definition, or a slight variation of it, in both civil and criminal cases.   Other jurisdictions  



                                     

likewise agree that, as a general matter, "market value" means the price a willing buyer  

would pay to a willing seller in the open market at a certain time and place.10  



                                                      

                      Indeed, the Alaska Criminal Pattern Jury Instructions use a variant of this  



                          

common            law      definition          of    "market          value"        in     the     pattern        instruction          for  



      7    Morissette v. United States , 342 U.S. 246, 263 (1952) (holding that where there is no   



definition in a statute, a word in the statute is construed to have its common law meaning);  

Young v. Embley, 143 P.3d 936, 945 (Alaska 2006) (noting that when the statutory language   

and legislative history are ambiguous, Alaska courts look to the common law to discern  

legislative intent and interpret statutes).  



      8  

                                                                     

           See Black's Law Dictionary 597 (6th ed. 1990); see also 50 Am. Jur.2d Larceny  45  

            

(2014) ("'Fair market value,' for the purposes of establishing the grade of the offense of  

                                                                                                                    

larceny, is the price the property will bring when offered for sale by a seller who desires but  

                                                                                  

is not obliged to sell and bought by a buyer under no necessity of purchasing."); 52B C.J.S.  

Larceny  81 (2014).    



      9    See, e.g., Doyle v. Doyle , 815 P.2d 366, 370 n.6 (Alaska 1991);                                  Jones v. State , 1984  



WL 908613, at *6 (Alaska App. Aug. 29, 1984) (unpublished).  



      10  

                                                             

           See, e.g., State v. Hall, 304 P.3d 677, 681 (Kan. 2013); People v. Irrizari , 156 N.E.2d  

69, 71 (N.Y. 1959); State v. Downing , 654 N.W.2d 793, 798 (S.D. 2002); Com. v. Hanes, 522  

          

A.2d  622, 625 (Pa. Super. 1987); People v. Johnson , 348 N.W.2d 716, 718 (Mich. App.  

 1984).  



                                                                     6                                                              2429
  


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

                                  11  

AS 11.46.980(a).                       And Morris himself requested that the trial court instruct the jury  



with this definition (although the court denied his request).  



                          Thus, contrary to Morris's argument on appeal, the term "market value" has  



a recognized legal meaning.  



             The  relationship  between  an  item's  wholesale  and  retail  price  and  its  

                                                                                                                    

              "market value"  



                          As  the  term  is  used  by  the  courts,  the  market  value  of  an  item  is  not  

                                         



necessarily the same as the price at which it was offered for sale, or the price at which  

                                                                                                



it was purchased, whether in the wholesale or retail market.   Rather, "market value"  

                                                                                                                                         



depends on a series of factors:  who is doing the buying and who is doing the selling,  



when  the  transaction  took  place,  and  in  what  market  (i.e.,  a  retail  or  a  wholesale  

market).12  

                      



                          But in the context of retail merchants selling goods to ordinary consumers,  



the weight of authority supports the rule that an item's retail price is prima facie evidence  



       11    See Alaska Criminal Pattern Jury Instruction AS 11.46.980(a) (2013).  



       12    See Hall, 304 P.3d at 681 ("market value" depends on the identity of buyer and seller);                                



State v. Carter, 544 S.W.2d 334, 338 (Mo. App. 1976) (value is defined situationally);                                                                        State  

v. Campell, 721 S.W.2d 813, 819 (Tenn. Crim. App. 1986) ("market value" has no invariable                                                

definition).  



                                                                                  7                                                                           2429
  


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

                                                                      13  

of its market value at the time of the theft.                             The basis for this rule was explained by the       

New York Court of Appeals in People v. Irrizari :14  



                       To accept wholesale value in a case [involving larceny from  

                                                                                    

                       a department store] would be to ignore the facts of economic  

                                                                    

                       life.  Stated very simply, it is the retailer's function in our  

                                                                       

                       economy to move goods to the consuming public and, in the  

                      process,  the  market  value  of  the  goods  is  unquestionably  

                       enhanced.  In addition, the retailer expends money on various  

                                                                                 

                       services   including   advertising,   promoting,   display   and  

                                      

                      packaging in order to increase the interest of the public and  

                                                                                                    

                       make it more willing to buy.  When, therefore, a thief steals  

                                                                                                          

                       an article from a department store, he steals something having  

                                                                                               

                       a market value quite different from that which it has in the  

                       hands of the wholesaler.15  



                       This does not mean that an item's wholesale price is entirely irrelevant to  

                                         



the determination of its market value in the retail market.  The wholesale cost of an item  



may  be  particularly  relevant,  for  example,  in  a  case  in  which  the  wholesale  cost  is  

                                                                                             



      13   See, e.g., Irrizari , 156 N.E.2d at 70-71;                     Downing , 654 N.W.2d at 798-99; Hanes , 522  



A.2d at 625; State v. McDonald , 251 N.W.2d 705, 707 (Minn. 1977); State v. King , 396 A.2d   

354, 355-56 (N.J. Super. App. Div. 1978); State v. Fish, 748 S.E.2d 65, 68-69 (N.C. App.  

2013); Maisel v. People , 442 P.2d 399, 401 (Colo. 1968);                                        Calbert v. State, 670 P.2d 576  

(Nev. 1983); State v. Jennings, 9 A.3d 446, 454-55 (Conn. App. 2011); People v. Cook , 43  

Cal. Rptr. 646, 648 (Cal. App. 2d Dist. 1965);                             State v. Sorrell, 388 P.2d 429, 431-32 (Ariz.   

1964).  But see Washington v. State , 751 P.2d 384, 387 (Wyo. 1988) (defining market value   

                                                                              

as  retail  price);  State  v.  Garza ,  487  N.W.2d  551,  557  (Neb.  1992)  (price  tags  alone  

insufficient to establish market value).  



      14    156 N.E.2d 69 (N.Y. 1959).  



      15   Id. at 70-71; see also King , 396 A.2d at 356 (quoting                             Irrizari); Maisel , 442 P.2d at 401  



(same); Downing , 654 N.W.2d at 798-99 (same).  



                                                                        8                                                                  2429
  


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

"disproportionately  low  in  relationship  to  the  listed  sales  price  or  ...  otherwise  

inconsistent with the victim-retailer's customary mark-up practices."16  



                       Likewise, there will be times when the retail price of an item represents the       

hope of the retailer more than the reality of the market.                                     17  

                                                                                                  Thus, a defendant might rebut  



                                      

the presumption that the retail price of an item represents its market value by offering  



                                                                                                                        

evidence that "there are no willing buyers at the alleged price; [or that] even though there  



is  a  willing  buyer  at  the  alleged  price,  the  price  is  unreasonable  in  light  of  local  



competitor's prices for the same or similar items; or ... that the seller customarily sold the  

                                         

property at a discounted price." 18  

                                                           The defendant might also introduce evidence that a  



                                                                                                      

retailer's goods have lost their market value, such as when clothing has sat on the shelf  



                                                                                        19  

for a long period of time and has gone out of style.                                        



                                                                     

                       Having rejected Morris's contention that the term "market value" should  



                                                                       

be interpreted under the rule of lenity to mean the wholesale price, we now turn to his  



actual claim of legal insufficiency.  In Morris's case, the jury heard evidence that the  



                                           

stolen parka had a retail price of $659.95 and that other reputable retailers were asking  



                                                                                                         

even higher prices for the same parka.  We conclude  that  a fair-minded juror could  



      16   King , 396 A.2d at 356-57.  



      17    See Garza , 487 N.W.2d at 557 (noting that a price tag only represents the sum the  



                                                                        

retailer hopes to obtain, not necessarily the amount a willing buyer would pay); Carter, 544  

                                             

S.W.2d at 338 (noting that a merchant may arbitrarily inflate or deflate the retail price such  

that it does not realistically represent the true value).  



      18   Hanes , 522 A.2d at 628; see also Irrizari, 156 N.E.2d at 71.  



      19    See McDonald , 251 N.W.2d at 707 (citing People v. Fognini , 28 N.E.2d 95, 97 (Ill.                                      



1940)).  



                                                                          9                                                                  2429
  


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

reasonably conclude based on this evidence that the market value of the stolen parka was   

more than $500.20  

                            We therefore affirm Morris's conviction for second-degree theft.  



          Conclusion  



                    We AFFIRM Morris's conviction, and we refer Morris's sentence appeal  



to the Alaska Supreme Court under Appellate Rule 215(k).  



     20   See  Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012). 
 



                                                              10                                                         2429
  


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

Judge MANNHEIMER, concurring.  



                      I write separately to supplement the lead opinion with regard to two issues.     



                      The first issue arises from the way Morris frames his claim on appeal.                                              As  



the lead opinion explains, Morris argues that the phrase "market value" is ambiguous,   



and that this phrase must therefore be given the interpretation most favorable to him -   



i.e., that "market value" must be construed as "wholesale value".   



                      Morris describes this argument as a "sufficiency of the evidence" claim -  

                                                                                                                



but it is not.  Morris's underlying claim is that the law needs to be clarified.  Morris is  



essentially claiming that his jury was misinstructed, or at least misleadingly instructed,  

                                                



concerning the elements of second-degree theft - because the jurors were not instructed  



in accordance with Morris's proposed interpretation of "market value".   



                      See the discussion of this point in  Collins v. State, 977 P.2d 741, 748,  

                                                                                                                      



751-52 (Alaska App. 1999).  



                      Identifying  the  correct  legal  characterization  of  Morris's  argument  is  



important because, if Morris's claim were a true "sufficiency of the evidence" claim, then  

                                                                                                       



a ruling in Morris's favor would trigger double jeopardy consequences:  it would result  

                                                                               



not only in reversal of the trial court's judgement, but also dismissal of the case against  

                                                                                   



Morris.   



                      But Morris's argument is really about the definition of the offense, and not  

                                                                                                                     



the sufficiency of the evidence.  Because of this, even if we had agreed with Morris about  

                                                                                                



the interpretation of the statute, Morris would only have been entitled to a reversal of his  

                                                                                    



conviction, and the State would have been allowed to re-try him.   



                      I acknowledge that, if we  had  ruled that the determinative value of the  



parka was its wholesale cost, then, given the evidence in Morris's case (in particular, the  

                                                         



                                                                      11                                                               2429
  


----------------------- Page 12-----------------------

uncontested evidence that the wholesale value of the parka was considerably less than  



$500), the State could hardly have hoped to successfully prosecute Morris for felony  

            



theft.    But  we  must  not  let  this  fact  obscure  the  legal  principle  involved  here:    the  

                                



distinction between a true "insufficiency of the evidence" claim versus a claim that the  

                                                                                                              



verdict was based on an erroneous understanding of the law.  



                    This brings me to the second issue:  the sufficiency of the jury instructions  



in Morris's case.   



                    Morris's  jury  was  instructed  that  the  value  of  the  stolen  parka  was  its  

                                                                                                  



"market value" at the time and place of the theft, but the jury did not receive any further  

                                                                               



instruction on the meaning of "market value".  In particular, the jury was not apprised  



of the definition we describe in this opinion, and which we confirm today as the law of  

                                                                                                                        



Alaska.   



                    Morris's case is especially problematic because his attorney actually asked  

                                                                                           



the trial judge to give the jury an instruction on "market value" that more or less tracked  

             



the definition we adopt in this opinion - and the trial judge refused.    



                    One might therefore wonder whether Morris should be granted a new trial  



in front of a jury that is affirmatively instructed on the meaning of "market value".  For  

                                    



three reasons, I conclude that the answer is "no".  



                    First, the legal meaning of "market value" does not differ greatly from its  

                                                                                                           



commonly understood meaning.  In fact, the common-law definition of "market value"  

                                                              



is simply a more refined version of its everyday meaning.  For instance, Webster's New  

                                                          



World College Dictionary defines "market value" as "the price that a commodity can be  

                                         

expected to bring when sold in a given market". 1  



     1    Webster's New World College Dictionary (Fourth Edition, 2004), p. 880.  



                                                               12                                                            2429  


----------------------- Page 13-----------------------

                    Second, at Morris's trial, both parties litigated this case under the implicit  

                                                                                               



assumption that the parka's "market value" was more or less accurately reflected by its  

                                                                 



retail price at the time of the theft.  



                    The State presented evidence that 6th Avenue Outfitters was selling the  



Canada Goose parka for $660, and that two other authorized retailers were selling the  



same parka for $740.  Morris, for his part, did not argue that the wholesale price was  



controlling, nor did he argue that the retail price of the parka was a misleading gauge of  

                                                                                                   



its market value, since the wholesale price was so much lower.  Rather, Morris presented  

                                                                     



competing evidence as to the retail price - specifically, evidence that the same parka  



was selling on the Internet for $221.  (As the lead opinion explains, the State presented  



rebutting evidence that this Internet retailer was not an authorized dealer, and that the  



parka being sold at this price was probably a counterfeit.)  



                    And finally, Morris's defense to the theft charge did not involve the value  



of the parka.   



                    During the State's summation at the end of the trial, the prosecutor only  

                                                                      



briefly mentioned the issue of value - arguing without elaboration that the market value  

                                                                                 



of the stolen parka was the price at which 6th Avenue Outfitters offered it for sale on the  

                                                                                                                 



day of the crime:  $659.95.   



                    Morris's attorney never disputed the market value of the stolen parka in his  

                                                                                                                



summation to the jury.  Instead, the defense attorney focused exclusively on the assertion  

                                                                



that Morris had not committed any theft at all - that he had been mistakenly identified  

                                                                               



as the man who stole the parka from 6th Avenue Outfitters.  



                    For all of these reasons, I conclude that even if Morris's jury had received  

                                                                               



a  more  detailed  instruction  on  the  legal  meaning  of  "market  value",  there  is  no  

                                                                 



reasonable possibility that the jury's verdict would have been different.  



                                                              13                                                         2429
  

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