Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Ramsey v. State (8/28/2015) ap-2470

Ramsey v. State (8/28/2015) ap-2470

                                                               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  



PAMALEA JOYCE RAMSEY,  

                                                                                 Court of Appeals No. A-11701  

                                           Appellant,                          Trial Court No. 3AN-12-2725 CR  



                                v.  

                                                                                               O P I N I O N  

STATE OF ALASKA,  



                                           Appellee.                              No. 2470 - August 28, 2015  



                     Appeal                  

                                   from  the  Superior  Court,  Third  Judicial  District,  

                     Anchorage, Gregory A. Miller, Judge.  



                     Appearances: Callie Patton Kim, Assistant Public Defender, and  

                                            

                      Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                           

                      Donald  Soderstrom,  Assistant  Attorney  General,  Office  of  

                                                                                        

                      Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                      General, Juneau, for the Appellee.  



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

                                                                    

                      Judges.  



                      Judge ALLARD.  



                      Pamalea Joyce Ramsey was convicted by a jury of one count of second-                                      



degree theft based on evidence that she stole a variety of items from her employer on                                                    

different days.         1  



      1    See former AS 11.46.130(a)(1) (2012).  


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

                              At trial, Ramsey's defense attorney asked the judge to instruct the jurors                                                                             



that   they   had  to  unanimously   agree   on   which   of   the   alleged   acts   of   theft   Ramsey  



committed.   The prosecutor objected, and the trial judge declined to give the requested                                                                                     



instruction.  



                              On appeal, the State concedes that this was error.                                                              The State's concession      

of error is well-founded.                              2  



                                                                                                                                                                               

                              When the State presents evidence that a defendant committed multiple  



                                                                                                                                                                         

different acts that could each support a criminal conviction, the court is required to  



                                                                                                                                                                            

instruct the jury that they must be factually unanimous as to which act the defendant  



                          3  

committed.                                                                                                                                                                 

                                Even  in  cases  where  the  defense  fails  to  request  a  factual  unanimity  



                                                                                                                                                                                     

instruction, the failure to give such an instruction is plain error requiring reversal unless  



                                                                                                                                                                       4  

                                                                                                                                                         

the State can show that the error was harmless beyond a reasonable doubt. 



                                                                                                                                                                                                 5  

                                                                                                                                                                                                     

                              Here, the prosecutor presented evidence of multiple discrete acts of theft. 



                                                                                                                                                                                          

A factual unanimity instruction was clearly required in this circumstance and was also  



                                                                                     

specifically requested by the defense counsel.  



                                                                                                                                                                           

                              The prosecution's objection to the proposed factual unanimity instruction  



                                                                                                                                                                             

and  the  court's  ruling  against  the  instruction  appear  to  be  based  on  an  incorrect  



                                                                                                                                                                                                

understanding of the law.  As this Court explained in McDole v. State, theft is not a  



        2      See Marks v. State                        , 496 P.2d 66, 67-68 (Alaska 1972).                               



        3      Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985);                                                                         Anderson v. State , 289  



P.3d 1, 4 (Alaska App. 2012); Castillo v. State, 821 P.2d 133, 137 (Alaska App. 1991).  



        4      See Moreno v. State, 341 P.3d 1134, 1138 (Alaska 2015).  



        5      See former AS 11.46.130(a)(1) (2012) (second-degree theft); former AS 11.46.140(a)- 

                                                                                                                                               

(1)  (2012)  (third-degree  theft).                                     In  2014,  the  legislature  increased  the  value  element  of  

                                                                                                                                                                           

second-degree theft to $750 or more, and increased the value element of third-degree theft  

to $250 or more.  See ch. 83,  4, 5, SLA 2014.  



                                                                                            - 2 -  

                                                                                                                                                                                     2470
  


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

continuing offense; a theft is complete as soon as the thief appropriates the property of                                                      

another.6                     

                 Under AS 11.46.980(c), a defendant can be charged with, and convicted of,  



                                                                                                                                         

a higher degree of theft based on the aggregate value of items taken at separate times  



                                                                                                                                         

during "one course of conduct."  But McDole holds that this aggregation statute "does  



                                                                                                            

not define [the offense of] theft," and instead only defines "the degree of the theft that  



                                                           7  

                                     

may be charged with aggregation." 



                                                                                                                                 

                       In  other  words,  even  when (as in Ramsey's case)  the State charges  a  



                                                                                                                           

defendant with a higher degree of theft based on a connected series of smaller-value  



                                                                                                                                           

thefts, the jury's verdict must still be based on the jurors' unanimous agreement as to  



                                                                            

which of the individual thefts the defendant committed.  



                                                                                       

                       The judgment of the superior court is REVERSED.  



      6    McDole v. State , 121 P.3d 166, 169 (Alaska App. 2005).  



      7    Id.  



                                                                     - 3 -                                                               2470
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC