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Rae v. State (11/21/2014) ap-2436

Rae v. State (11/21/2014) ap-2436

                                                    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 @ akcourts.us  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MICHAEL L. RAE,  

                                                                   Court of Appeals No. A-11274  

                                   Appellant,                     Trial Court No. 1JU-11-505 CR  



                           v.  

                                                                           O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                      No. 2436 - November 21, 2014  



                            from the Superior Court, First Judicial District, Juneau,  

                  Appeal                                     

                  Louis J. Menendez, Judge.  



                  Appearances:  Jane B. Martinez, Anchorage, for the Appellant.  

                  Donald  Soderstrom,  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 MANNHEIMER.  



                  Michael  L.  Rae  appeals  his  convictions  for   first-degree  vehicle  theft,  



second-degree burglary, third-degree criminal mischief, and third-degree theft.   The  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

State's case was based on allegations that Rae stole a truck, then used it to crash into the                                         



side of a store and steal a large amount of beer (six 12-packs, a case of twenty-four, and                                          



two 5-gallon kegs).   



                         Rae  contends  that  his  indictment  was  tainted  by  the  introduction  of  



inadmissible evidence at the grand jury.  He also contends that the State failed to produce  

                                               



sufficient evidence at his trial to establish that he was the perpetrator of these crimes.   



                         For the reasons explained in this opinion, we conclude that neither of Rae's  

                                                                                                                                      



claims has merit, and we therefore affirm his convictions.  



             Underlying facts  



                         When a defendant challenges the sufficiency of the evidence to support a  

                                                                                                               



criminal conviction, we must view the evidence (and all reasonable inferences to be  

                                                                                                                                   

drawn from it) in the light most favorable to the jury's decision. 1  

                                                                                                                           We therefore present  



the evidence in Rae's case in that light.   



                                                                                            

                         In the early morning hours of April 29, 2011, a break-in and theft occurred  



at the gift shop of the Alaskan Brewing Company in Juneau.   



                         Thomas West, a company employee, arrived at work shortly before 4:00  



a.m..  When he arrived, West noticed a truck parked nearby with the name of a local  

                                                                                                                              



market, "Breeze-In", stenciled on its side. After a short while, West saw this truck drive  

                                                                                



past him slowly.  West found this unusual because he did not normally see the Breeze-In  

                                                                              



truck in that location, nor being driven at that time of day.  



                         A little later, West discovered the bumper of a vehicle on the sidewalk in  

                                                                                                         



front of the Alaskan Brewing Company gift shop, and he saw that the gift shop doorway  

                                                                                                                                        



       1    See  Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012); Silvera v. State, 244  



P.3d 1138, 1143-44 (Alaska App. 2010).  



                                                                            - 2 -                                                                        2436
  


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

had been smashed in.  Six 12-packs of beer, one full case of beer, and two 5-gallon kegs  

                                                                                            



of beer were missing from the gift shop.  



                   About 30 minutes later (at 4:35 a.m.), a resident of a local mobile home  



park, John McGillis, saw the Breeze-In truck pull up in front of trailer number 46.  Rae  

                                                                           



was driving the truck.  (McGillis knew Rae because they had lived together for two  



weeks.)  McGillis watched as, over the next ten minutes, Rae unloaded kegs and packs  

                                                                                       



of beer from the truck.  



                   After unloading the beer, Rae got back into the Breeze-In truck and sped  



away.  About fifteen minutes later, McGillis saw Rae return to the mobile home park on  

                                                                                                                



foot.  



                   Later that morning, the Juneau police found the Breeze-In truck.  It was  



damaged, and its front bumper was missing.  



                   Detective  Krag  Campbell  took  up  the  investigation  of  this  occurrence.  

                                                                                                   



Campbell spoke with McGillis, and he viewed a surveillance video that corroborated  



parts of McGillis's account.  Detective Campbell then went to trailer 46.  He found Rae  

                                                                                                      



sitting on the front porch; Rae was drinking a bottle of the Alaskan Brewing Company's  

                                                              



IPA.  Campbell immediately detained Rae.  



          The sufficiency of this evidence to support the jury's finding that Rae was  

                                                                                    

         the perpetrator of these crimes  



                   At Rae's trial, he conceded that someone had stolen the truck, crashed into  

                                            



the brewing company's gift shop, and stolen the beer - but Rae contended that the  



State's evidence was not sufficient to prove that he was this person.  The jury rejected  



Rae's defense and concluded that Rae was the perpetrator of these crimes.  Now, on  



appeal, Rae argues that the evidence presented at his trial was legally insufficient to  



support the jury's conclusion.  



                                                         - 3 -                                                     2436
  


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

                   Evidence  is  legally  sufficient  to  support  a  criminal  conviction  if  the  



evidence and the reasonable inferences to be drawn from it, when viewed in the light  



most favorable to the jury's decision, are sufficient to convince fair-minded jurors that  

                                                        

the government has proved its allegations beyond a reasonable doubt. 2  

                                                                                                            



                   The evidence recounted in the preceding section of this opinion meets this  



test.  We therefore conclude that the evidence presented at Rae's trial is legally sufficient  

                                                                                                   



to support his convictions.  



          Rae's challenge to the grand jury indictment  



                   When Rae's case was presented to the grand jury, the State presented the  

                                                                             



evidence that we have already described.  



                   But in addition, the State presented evidence of what Detective Campbell  

                                                                                      



discovered afterwards inside trailer number 46, when he searched that trailer under the  

                                           



authority of a search warrant. Inside the trailer, Detective Campbell found thirty to forty  

                                                                                    



bottles of the Alaskan Brewing Company's "Alaskan Amber" beer scattered around the  

                                                                



living room, plus packs of beer and two 5-gallon beer kegs.  



                   At  some  point  after  the  prosecutor  finished  her  presentation  of  this  



evidence, one of the grand jurors asked, "Is there any way - Do we know for sure that  

                                                           



the  kegs  that  were  found  in  that  trailer  were  the  actual  kegs  that  were  stolen?"    In  

                                                             



response, the prosecutor recalled one of the Alaskan Brewing Company employees to  



the stand.  This employee testified that each keg had a unique UPC code, and that the  



codes on the recovered kegs matched the codes of the gift shop's missing kegs.  



                   The grand jury then returned a true bill on all counts.  



     2    State v. McDonald , 872 P.2d 627, 653 (Alaska App. 1994).  



                                                           - 4 -                                                      2436
  


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

                       Five  months  later,  the  court   and  the  parties  discovered  that  the  search  



warrant application hearing had not been recorded.  Rae's attorney moved to suppress  



the search warrant and all the resulting evidence, and to dismiss the indictment (because  

                                                                  



this evidence had been presented to the grand jury).  



                       The superior court held an evidentiary hearing to see if the record of the  



 search warrant application could be reconstructed.  Both Detective Campbell and the  



judge who heard the search warrant application testified at this hearing, but the superior  

                                                                                                          



court ultimately determined that it was not possible to reconstruct a reliable record of the  

                                                          



 search  warrant  application  hearing.    The  court  therefore  granted  Rae's  motion  to  



 suppress the evidence obtained pursuant to the search warrant.  (This evidence was not  

                       



presented at Rae's trial.)  



                       But even though the superior court suppressed the evidence obtained under  



the search warrant, the court denied Rae's motion to dismiss the indictment.  The court  

                                                                                                                                 



concluded  (1)  that  the  remaining  grand  jury  evidence  was  sufficient  to  support  the  



indictment,  and  (2)  that  the  presentation  of  the  search  warrant  evidence  had  not  



appreciably affected that grand jury's decision.  



                       On appeal, Rae challenges both of the superior court's conclusions.  



                       With  respect  to  Rae's  first  contention  (that  the  remaining  grand  jury  

                                                                                                            



evidence was insufficient to support the indictment), we need only reiterate our earlier  



conclusion that this same evidence was sufficient to support the trial jury's decision that  



Rae was guilty  beyond a reasonable doubt.  Because this evidence was sufficient to  

                            



 support a finding of guilt beyond a reasonable doubt, this evidence was sufficient to  

 support the grand jury's indictment, where the burden of proof is less demanding. 3  

                                                                                                                                             



      3    See   Cathey v. State          , 60 P.3d 192, 195-96 (Alaska App. 2002); Sheldon v. State, 796  



P.2d 831, 836-37 (Alaska App. 1990) (a grand jury should return an indictment when the     

grand jury is "convinced of the probability of the defendant's guilt").  



                                                                     - 5 -                                                               2436
  


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

                    We  therefore  turn  to  Rae's  remaining  contention:    that  the  evidence  



obtained during the execution of the search warrant caused the grand jury to return an  



indictment when, otherwise, they would not have.  



                    The applicable legal test is stated in Stern v. State, 827 P.2d 442 (Alaska  

                                                                                                      



App. 1992).  Under Stern, we must ask whether "the probative force of [the] admissible  

                                                                              



evidence was so weak and the unfair prejudice engendered by the improper evidence was  



so strong that it appears likely that the improper evidence was the decisive factor in the  

                                                                                                               



grand jury's decision to indict."  Id. at 446.  



                    Again, the answer to our inquiry seems to lie in our conclusion that the  



evidence presented at trial - essentially the same evidence that the grand jury heard,  

                                                                                                 



minus the evidence obtained during the search - was sufficient to support the guilty  

                 



verdicts returned by the trial jury.  This demonstrates that the probative force of the  



remaining evidence was not weak - that it was, in fact, convincing beyond a reasonable  

                                                                                                   



doubt - and that the search warrant evidence therefore could not have been the decisive  

                                                                                  



factor in the grand jury's decision to indict Rae.  



                    The only aspect of this case that might indicate a contrary conclusion is the  

                                                                   



fact that one of the grand jurors, even after hearing the search warrant evidence, still  

                                        



wanted to know if the government had more definite proof that the two kegs found in  

                                                                                                            



Rae's trailer were the same kegs stolen from the brewing company's gift shop.  This  



grand juror's  motive  for asking this question is unclear:  the question might simply  

                                 



reflect the fact that the grand juror was curious about this point, but the grand juror's  



question might also indicate that the grand juror had lingering doubts about the State's  

                        



evidence.  



                    But even if we assume that this grand juror did indeed have doubts about  

                                                                                                             



the State's case, we conclude that this does not require dismissal of the indictment.  



                                                            - 6 -                                                       2436
  


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

                        A  grand  jury  decides  cases  by  majority  vote;  that  is,  the  grand  jurors'  



decision need not be unanimous.  Thus, even if we assume that this single grand juror  

                                                                                                                        



harbored reservations about the case, this does not tell us whether any other grand jurors  



had doubts about the case, nor does it tell us whether the grand jury as a whole would  

                                                                           



have been unlikely to return an indictment in the absence of the search warrant evidence.  

                                                                          



                        Alaska Evidence Rule 606(b) prohibits any inquiry into the deliberative  

processes of individual grand jurors for the purpose of attacking an indictment. 4  

                                                                                                                                             Thus,  



                                   

under Alaska law, we (and the superior court) are forbidden from inquiring into the  



                                                                                                                                    

 subjective deliberative processes of the other grand jurors on Rae's panel.  Instead, we  



                                                                                                        

are required to apply an objective standard when we decide, under the Stern test, whether  



the introduction of the search warrant evidence appreciably affected the other grand  



jurors' decision.  



                        Alaska law is already clear on this point in the context of attacks on the  



validity of a trial jury's verdict.  In Swain v. State, 817 P.2d 927 (Alaska App. 1991), this  

                                                       



Court held that when a question arises post-verdict as to whether an impropriety affected  

                            



the decision of a trial jury, that question is resolved under the "substantial likelihood  



                                                                                                                                 5  

test", which this Court declared to be "an objective standard".  Id . at 932.     



      4     Evidence Rule 606(b) states, in pertinent part:   "Upon an inquiry into the validity of   



a verdict or indictment, a juror may not be questioned as to ... the effect of any matter or  

 statement upon that or any other juror's mind or emotions as influencing the juror to assent   

to or dissent from the verdict or indictment or concerning the juror's mental processes in  

connection therewith, except that a juror may testify on the question whether extraneous  

                                                                   

prejudicial information was improperly brought to the jury's attention or whether any outside  

influence was improperly brought to bear upon any juror.  Nor may a juror's affidavit or  

evidence of any statement by the juror concerning a matter about which the juror would be  

precluded from testifying be received for these purposes."  



      5  

                                                                                                     

            Quoting the American Bar Association's commentary to its Criminal Justice Standard  

 8-3.7.  



                                                                       - 7 -                                                                   2436
  


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

                       This rule also applies to the attack on the indictment in Rae's case.                                                     We  



apply an objective test when we assess whether the search warrant evidence was the  



decisive factor in the other grand jurors' decision to indict Rae.  Stern, 827 P.2d at 446.  

                                                                                                                            



                       Using this objective test, and given the other evidence presented to the  



grand jury, we conclude that the evidence obtained under the search warrant was not the  

                                                                                                          



decisive factor in the other grand jurors' decision to indict Rae.  The superior court  

                                 



therefore properly denied Rae's motion to dismiss the indictment.  



            Conclusion  



                       The judgement of the superior court is AFFIRMED.  



                                                                       - 8 -                                                                   2436
  

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