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Daniel Morris v. State of Alaska (6/13/2025) ap-2807

Daniel Morris v. State of Alaska (6/13/2025) ap-2807

                                                NOTICE  

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DANIEL J. MORRIS,  

                                                                Court of Appeals No. A-14072  

                                 Appellant,                   Trial Court No. 1KE-20-00426 CR  



                         v.  

                                                                          O P I N I O N  

STATE OF ALASKA,  



                                 Appellee.                        No. 2807 - June 13, 2025  



                Appeal   from   the   Superior   Court,   First   Judicial   District,  

                 Ketchikan, Trevor Stephens, Judge.  



                Appearances:  Julia  Bedell,  Assistant  Public  Defender,  and  

                 Terrence Haas, Public Defender, Anchorage, for the Appellant.  

                 Scott  Crawford  (briefing)  and  Kayla  Doyle  (oral  argument),  

                Assistant  Attorneys  General,  Office  of  Criminal  Appeals,  

                Anchorage, and Treg R. Taylor, Attorney General, Juneau, for  

                 the Appellee.  



                 Before:  Allard,  Chief  Judge,  and  Wollenberg  and  Terrell,  

                 Judges.  



                 Judge ALLARD.  



                 Daniel J. Morris was convicted, following a jury trial,  of one count of  



second-degree theft for stealing an inflatable raft from a creek bed in Ketchikan. Morris  



raises  multiple  arguments  on  appeal,  including  that  the  State  presented  insufficient  


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evidence  as to both his intent and the raft's value.  For the reasons explained  in this  



opinion, we reject Morris's argument that the State presented insufficient evidence as  



to his intent, but we agree that the State presented insufficient evidence that the raft's  



value was $750 or more. We therefore reverse Morris's conviction for second-degree  



theft, but we remand this case to the superior court to enter a conviction for third-degree  



theft and to resentence Morris on that crime.   



        Background facts  



               Morris moved to Ketchikan in late May 2020 to work on a fishing boat.  



Shortly after arriving, Morris went hiking and spotted an inflatable raft on the creek bed  



near Signal Creek Campground. A few days later, Morris went hiking again and saw  



the raft still sitting on the creek bed. At trial, Morris testified that he thought the raft  



had been abandoned.  



               Morris took a picture of the raft and showed it to a local restaurant owner  



he  had  befriended,  Lesly  Trelfa.  Trelfa  testified  that  she  also  believed  the  raft  was  



abandoned, and she paid her son, James Burge, to help Morris retrieve the raft.   



               A few days later, Morris and Burge drove to Signal Creek in Burge's truck  



and picked up the raft. A local resident  observed Morris and Burge removing the raft  



while she was on a walk with her family. She testified that Morris was friendly and  



waved to her as she walked by.   



               After collecting the supposedly abandoned raft, Morris and Burge dropped  



it off at Trelfa's property - a vacant lot on the outskirts of town. They placed it near  



the back of the property where it was not visible from the road.   



               As it turned out, however, the raft had not been abandoned. It belonged to  



the Signal Creek Campground host, Stephen Kirkland, who testified at trial that he used  



the  raft  to  paddle  out  onto  the  lake  every  morning  and  afternoon  to  get  cell  phone  



service.   



                                               - 2 -                                           2807  


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                 A few hours after Morris took the raft, Kirkland noticed it was missing  



and reported it stolen. Forest Service Captain William Elsner investigated the case and  



quickly determined  that Burge had been involved. Burge told Elsner where they had  



stored the raft and helped Elsner recover it.   



                 Elsner then met with Morris and interviewed him. Morris told Elsner that  



he  thought  the  raft  was  abandoned,  but  Morris  also  said  that  he  had  not  talked  to  



anybody at the campground prior to taking the raft, and that he had not made any efforts  



to find the owner since he took it. Later that day, Morris sent a message to Kirkland  



apologizing for taking the raft, but also blaming Kirkland for leaving his raft out on the  



creek bed.  



                 Based on this conduct, Morris was indicted on one count of second-degree  

theft. 1  His case proceeded to a jury trial.  Although Morris  originally  told Elsner he  



believed the raft was abandoned, Morris told a different story at trial: he testified that  



he "intended to take [the] raft, clean it up, and give it back to the owner."   



                 The jury convicted Morris of second-degree theft. This appeal followed.  



         Why we reverse Morris's conviction for second-degree theft  



                 To  prove  that  Morris  was  guilty  of  theft  in  any  degree,  the  State  was  



required to prove that Morris acted "with intent to deprive another of property or to  

appropriate property of another to [him]self."2 To prove that Morris was guilty of theft  



in the second degree, the State was also required to prove that the value of the raft was  



                 3 

at least $750.    



    1   AS 11.46.130(a)(1).  



    2   AS 11.46.100(1).  



    3   AS 11.46.130(a)(1).  



                                                   - 3 -                                               2807  


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                 On appeal, Morris argues that the State presented insufficient evidence as  



to both his intent and the value of the raft. For the reasons we are about to explain, we  



conclude that the evidence as to Morris's intent was sufficient, but we agree with Morris  



that the State presented insufficient evidence to establish that the value of the raft was  



at least $750.   



                 When we review the sufficiency of the evidence to support a conviction,  



we are required to view the evidence, and all reasonable inferences to be drawn from  

that  evidence,  in  the  light  most  favorable  to  upholding  the  verdict.4  Viewing  the  



evidence in that light, we then determine whether "a reasonable fact-finder could have  



                                                                                         5 

concluded that the State's case was proved beyond a reasonable doubt."   



                 As to Morris's claim that the State presented insufficient evidence of his  



intent to steal, it is certainly true that there was evidence that Morris believed the raft  



was abandoned: the  raft  had been  left unattended  on a creek bed; Morris showed a  



picture of the raft to a local restaurant owner who agreed that it was likely abandoned;  



and Morris readily admitted to taking the raft and apologized to the owner.  



                 But we are required to view the evidence in the light most favorable to the  



jury's guilty verdict, not in the light most favorable to Morris. Interpreted in that light,  



the evidence paints a different picture. Morris asked Trelfa if she believed the raft was  



abandoned, but he made no attempt to ask anyone at Signal Creek Campground the  



same question, even though they would have been in a much better position to know  



the answer. Morris also changed his story: he told Captain Elsner that he believed the  



raft was abandoned, but he testified at trial that he intended to clean up the raft and then  



return it to the owner. And finally, Morris moved the raft to a vacant lot on the outskirts  



    4   Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).  



    5   Id. (citing Helmer v. State, 608 P.2d 38, 39 (Alaska 1980)).  



                                                   - 4 -                                               2807  


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

of town, stored the raft in a location that was not visible  from the road, and made no  



efforts to restore the raft or identify the owner.  



                 Taken  together,  and  viewed  in  the  light  most  favorable  to  the  jury's  



verdict,  this  evidence  suggests  that  Morris  did  not  actually  believe  the  raft  was  



abandoned, and that he did not intend to return it to its rightful owner. We note that this  



case turns at least in part on local customs and practice. Morris's story that he believed  



the raft had been abandoned might seem plausible to residents of a city like Anchorage,  



where it is unlikely a person would leave a boat unattended  in a public place  for an  



extended period of time. But this same story might - and apparently did - ring false  



to a Ketchikan jury more familiar with life in rural Alaska. Our deferential review of a  



jury's verdict is designed to ensure that appellate courts do not substitute our judgment  



for the wisdom and experience of local community members.  



                 For  these  reasons,  we  conclude  that  the  evidence  was  sufficient  for  a  



reasonable juror to find that Morris acted with intent to deprive another of property or  



to appropriate that property to himself.  



                 As  to  the  raft's  value,  however,  we  conclude  that  the  State  presented  



insufficient evidence to establish that the value of the raft was at least $750. Alaska law  



provides two methods for calculating the value of stolen property. The default method  

is "the market value of the property at the time and place of the crime."6 "Market value"  



                                                                                                            7 

refers to "the price a willing buyer would pay to a willing seller in the open market."   



If,  however,  "the  market  value  cannot  reasonably  be  ascertained,"  the  value  of  the  



property is "the cost of replacement of the property within a reasonable time after the  



          8 

crime."   



     6   AS 11.46.980(a).  



    7    Morris  v.  State ,  334  P.3d  1244,  1247-48  (Alaska  App.  2014);  see  also  Alaska  



Criminal Pattern Jury Instruction 11.46.980(a) (2015).  



     8   AS 11.46.980(a).  



                                                    - 5 -                                                2807  


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                 At trial, the State presented two critical pieces of evidence as to the value  



of the raft. The first was Kirkland's testimony that he purchased the raft new six years  



earlier (in 2014) for $899. The second was Kirkland's statement to Captain Elsner that  



a replacement raft would cost $1,750.  



                 Both of these numbers, of course, are over the $750 threshold required to  



prove  second-degree  theft.  But  neither  provided  sufficient  evidence  for  the  jury  to  



determine that the value of the raft was at least $750 under the law for calculating value  



we have just described.  



                 "Market value" -  i.e., the  default  mechanism for calculating value  -  



refers to the value of the property at the time and place of the crime. The original price  



the owner paid for the property may serve as evidence of the property's market value  



at the time of the crime. In fact, we have previously found that the original price may  



be sufficient, standing on its own, for a reasonable juror to conclude that the  market  



value of the property exceeds the statutory threshold. But that is not true in all cases,  



and it is not true in Morris's case. To see why, it is helpful to compare the facts of this  



                                                                                9 

case to the facts in our unpublished decision in McCue v. State.   



                 In McCue ,  the State was required to prove that the market value of the  

stolen property (a vehicle) was at least $1,000.10 The State's primary evidence on this  



point was that the victim had purchased the vehicle for $2,500 two years earlier. 11 The  



owner also testified that the vehicle remained in good condition, was not his primary  

mode of transportation, and usually remained parked at his apartment complex. 12 Given  



these facts, we concluded that a reasonable juror  could conclude that the value of the  



    9   McCue v. State, 2022 WL 110448 (Alaska App. Jan. 12, 2022) (unpublished).  



    10  Id. at *2.  



    11  Id.  



    12  Id.  



                                                    - 6 -                                                2807  


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

vehicle was still at least $1,000. 13 In other words, we concluded that a reasonable juror ,  



drawing on her knowledge and experience, could conclude that a used car had not lost  



more than sixty percent of its value over a two-year period.  



                 The situation we face here is quite different. Kirkland did not purchase a  



used car two years before the theft. Rather, he purchased a new inflatable raft six years  



before  the  theft,  and  the  undisputed  testimony  at  trial  established  that  the  raft  was  



routinely used and left out in the sun. Furthermore, the difference between the original  



purchase  price  and  the  statutory  threshold  was  not  $1,500  (or  sixty  percent  of  the  



original  purchase  price)  like  in McCue ,  but  only  $149  (or  seventeen  percent  of  the  



original purchase price). Given the nature of the property, the time since it had been  



purchased, and the heavy use it experienced, a reasonable juror could only speculate  

that  the  current  market  value  of  the  raft  was  at  least  $750.14  This  speculation  is  



                                                                                                        15 

insufficient to establish a market value of at least $750 beyond a reasonable doubt.                        



                 Furthermore,  we  note,  that  although  the  State  claims  on  appeal  that  



Kirkland's testimony about the original cost of the boat  was sufficient  for a jury to  



conclude that the market value of the boat was at least  $750  six years later, it did not  



ask the jury to reach that conclusion in this case. Instead, the State told the jury that the  



    13  Id.  



    14   On appeal, the State asserts that the jury was entitled to "infer that the price of the  

raft had remained stable or even increased due to inflation and supply chain issues during  

the  six  years  [between  2014  and  May  2020]."  But  this  is  pure  speculation.  The  State  

presented no evidence that heightened inflation or supply chain issues existed in Ketchikan  

during this time. In the absence of such evidence, no reasonable juror could conclude that  

an inflatable raft that was used regularly and stored outside would maintain its value (let  

alone appreciate) over a six-year period.   



    15   See Augustine v. State, 355 P.3d 573,  590 (Alaska App. 2015)  (holding that  the  



evidence presented at trial, "even when viewed in the light most favorable to the verdict,"  

was  "so  speculative  and  equivocal  that  it  [was]  legally  insufficient"  to  support  the  

conviction beyond a reasonable doubt).  



                                                    - 7 -                                                2807  


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

market value could not reasonably be ascertained, and that the jury should therefore  



rely on the cost of replacing the raft (i.e., the $1,750 Kirkland testified it would cost to  



                          16 

purchase a new raft).         



                 But the State's argument on this point was legally incorrect. As we have  



explained above, "market value" refers to "the price a willing buyer would pay  to  a  

willing seller in the open market."17 When the State argued this point to the jury, it told  



them that the market value could not reasonably be ascertained because Kirkland "does  



not sell any of his boats."  



                 When we speak of a "willing seller," however, we are not talking about  



whether the  victim  was  willing to sell  his  property. We are instead operating in the  



world of hypotheticals: we  first  imagine a person who is willing to sell the property,  



and we ask what price they could reasonably obtain from a person who is willing to buy  

it.18 If the State wanted the jury to rely on the raft's replacement value, it was not enough  



to present evidence that Kirkland  did not want to sell his boat. Instead, the State was  



required to establish, in effect, that the hypothetical willing sellers and willing buyers  



we have just described  did not exist  at the time this crime occurred -  i.e., that there  



was no market (and thus no market value) for the raft. The State presented no evidence  



on this point; nor is it particularly plausible, in the absence of such evidence, that there  



is no market for a working inflatable raft in a coastal city like Ketchikan.  



                 Because the State failed to present sufficient evidence establishing that the  



market value could not reasonably be ascertained, the jury was required to rely on the  



    16  See AS 11.46.980(a).  



    17   Morris v. State , 334 P.3d 1244, 1248 (Alaska App. 2014); see also Alaska Criminal  



Pattern Jury Instruction 11.46.980(a) (2015).  



    18  See Morris, 334 P.3d at 1247-48 (explaining the concept of "market value").  



                                                   - 8 -                                                2807  


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

raft's market value. 19 And as we have already explained, the State presented insufficient  



evidence   to   establish   that   the   market   value   was   at   least   $750.   Under   these  



circumstances, we must reverse Morris's conviction for second-degree theft.   



               At  oral  argument,  we  asked  Morris's  attorney  what  remedy  should  be  



provided if we concluded that the evidence was insufficient to establish that the raft's  



value was at least $750. Morris's attorney answered that it would be reasonable to infer  



that the raft was worth at least $250, which would support a conviction for third-degree  

theft.20 We agree. Accordingly, we reverse Morris's conviction for second-degree theft  



and direct the superior court to enter a conviction for the lesser-included offense of  



third-degree theft.   



        Morris's remaining claims  



               Morris raises two other issues on appeal: he claims that the jury instruction  



on calculating value was plain error, and that his sentence was excessive.   



               As  to  the  instruction  on  calculating  value,  the  jury  received  the  well- 



established and legally accurate pattern instruction that mirrors the statutory language  



we have already quoted and discussed above. As Morris has correctly argued on appeal,  



there was a serious issue concerning the jury's calculation of the  raft's  value in this  



case, but that issue derived from the insufficiency of the State's evidence, not from any  



legal error in the jury instruction. We therefore reject Morris's argument that the jury  



instruction constituted plain error.   



    19   See State v. Slater, 487 P.3d 59, 66 (Or. App. 2021) (holding that the trial court  

erred in relying on replacement value when the  state  failed to establish that the market  

value was not reasonably ascertainable).   



    20   AS 11.46.140(a)(1); see Andrew v. State, 237 P.3d 1027, 1049 (Alaska App. 2010)  



(holding that, where the evidence was insufficient to establish that the stolen property met  

the  felony  threshold  amount,  entry  of  conviction  on  the  lesser-included  offense  was  

warranted since the evidence was sufficient to establish the lower threshold amount).  



                                               - 9 -                                           2807  


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

                 As to Morris's claim that his sentence is excessive, we need not reach that  



claim because Morris will be resentenced on remand. Even if that were not the case,  



however, this Court lacks jurisdiction to hear Morris's excessive sentence claim since  



                                                                   21 

he was only sentenced to 6 months of active jail time.                



         Conclusion  



                 Morris's conviction for second-degree theft is REVERSED, and this case  



is  REMANDED  to  the  superior  court  to  enter  a  conviction  on  the  lesser-included  



offense of third-degree theft and to resentence Morris for that offense. We do not retain  



jurisdiction.  



    21   See  AS  12.55.120(a);  AS  22.07.020(b);  see  also  Alaska  R.  App.  P.  215(a)(1)  

(providing that a defendant may only appeal their sentence as excessive in felony cases  

when they are given "an unsuspended sentence of imprisonment that exceeds two years").  



                                                  - 10 -                                               2807  

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