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State v. Semancik (10/01/2004) sp-5833
State v. Semancik (10/01/2004) sp-5833
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-10846
Petitioner, ) Court of Appeals No. A-
7286
)
v. ) Superior Court No.
) 3PA-S98-1485CR
WAYNE SEMANCIK, )
) O P I N I O N
Respondent. )
) [No. 5833 - October 1, 2004]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Eric
Smith, Judge.
Appearances: Terisia K. Chleborad, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Petitioner. David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This petition for hearing arises out of a conviction
for attempted burglary. Semancik challenged the sufficiency of
his attempted burglary indictment for the first time on appeal on
the basis that it failed to specify what crime he intended to
commit when he entered the dwelling. The court of appeals, bound
by the rule in Adkins v. State,1 reversed Semanciks conviction
and dismissed the indictment. The State appeals, asking us to
overrule Adkins to the extent that it (1) requires burglary
indictments to specify the defendants intended crime and (2)
permits a defendant to challenge a burglary indictment for the
first time on appeal. While we continue to require the State to
specify a defendants intended crime in a burglary indictment, we
conclude that the failure to do so is a defect of form, rather
than substance. Thus, any challenge must be raised in the trial
court or it is waived.
II. FACTS AND PROCEEDINGS
On July 10, 1998, Wayne Semancik went over to his
neighbor Harvel Youngs property, apparently to retrieve his
missing dog.2 Semancik thought that the cries of a baby in
Youngs house were those of his dog, and he tried to force Youngs
door open, beating on the doors and walls of the house and
shattering a window with a rock. Semancik threatened to shoot
anything that moves once he gained entry into the house.
Semancik broke a small window near the door and punched through
the screen, pushing his arm through the broken window.3 When the
state troopers arrived, they subdued and arrested Semancik.
The State charged Semancik with various crimes,
including assault in the third degree and attempted burglary in
the first degree.4 The attempted burglary indictment failed to
specify the target crime; rather, the indictment alleged that
Semancik intend[ed] to commit the offense of Burglary in the
First Degree [and] engage[d] in conduct which consitute[d] a
substantial step toward the commission of that crime.5 Semancik
neglected to challenge the indictment or seek a bill of
particulars before or during the trial.6 At trial, Semanciks
lawyer adopted the position that the target crime was assault.7
The jury found Semancik guilty of attempted burglary, rejecting
his argument that his intention in entering the house was only to
retrieve his dog and not to commit any crime.8
On appeal, Semancik, for the first time, challenged the
burglary indictment as fatally flawed.9 A divided court of
appeals reversed the conviction on the basis that our decision in
Adkins v. State10 was controlling.11 Adkins requires that a
burglary indictment specify the defendants intended crime and
holds that an indictment lacking specification of the target
crime is fatally defective,12 so that a challenge may be raised
for the first time on appeal.13 The State petitions, asking that
we overrule the rule in Adkins.
III. DISCUSSION
A. Standard of Review
The principle of stare decisis is implicated in our
consideration whether to overrule one of our past decisions.14 We
will only overrule a prior decision when clearly convinced that
the rule was originally erroneous or is no longer sound because
of changed conditions, and that more good than harm would result
from a departure from precedent.15
B. The State Is Required To Include a Defendants Intended
Crime in a Burglary Indictment, but Failure To Do So Is
a Defect of Form that Cannot Be Raised for the First
Time on Appeal.
The State asks us to overrule our decision in Adkins v.
State,16 arguing that Adkins mistakenly added an element to the
statutory crime of burglary when it required that the intended
crime be specified in a burglary indictment. The State also
challenges Adkinss conclusion that omission of the specific
intended offense in an indictment amounts to a fatal defect that
can be challenged for the first time on appeal.17
The procedural background of Adkins was similar to that
of the present case: The defendants burglary indictment did not
specify the crime that he intended to commit, the defendant was
convicted, and he challenged the sufficiency of the indictment
for the first time on appeal.18 The Adkins court determined that
[i]n the case of burglary the essential elements of the offense
are the breaking and entry of a dwelling house by the accused and
the intent on his part to commit some specific crime therein.19
The court then concluded that the elements are matters of
substance and must be set forth in the indictment, otherwise it
is fatally defective20 and that this defect is not waived by the
failure to object below.21
We consider whether a burglary indictment must include
the defendants intended offense and, if so, whether omission of
the intended offense is a substantive defect that permits a
defendant to challenge the indictment for the first time on
appeal.
1. Strong public policy requires that the State
include the target crime in a burglary indictment.
The principle of stare decisis requires that two
conditions be met to depart from precedent: We must conclude that
the decision was erroneous when it was decided and that the
change represents good public policy such that more good than
harm [will] result from the departure.22
Departure from the requirement that the target crime be
specified in the indictment raises public policy concerns about
adequate notice of criminal charges for defendants. In Russell
v. United States, the United States Supreme Court established two
criteria for measuring the adequacy of an indictment: whether
the indictment contains the elements of the offense intended to
be charged, and sufficiently apprises the defendant of what he
must be prepared to meet; and whether in case any other
proceedings are taken against [the defendant] for a similar
offense, . . . the record shows with accuracy to what extent he
may plead a former acquittal or conviction.23 In Christie v.
State, we affirmed these principles, noting that the purpose [of
the indictment] is to give the defendant notice of the charge
against him so as to enable him to prepare his defense and to
permit him to claim double jeopardy in the future should he again
be charged with the same offense.24 In Adkins, we emphasized the
Russell protection of appris[ing] the [defendant] of the specific
crime he is supposed to have intended to commit25 and we continue
to find this policy compelling.
Semancik argues persuasively that without a requirement
that the underlying crime be specified, the accused will be
forced to go to trial without knowing what type of case the state
is going to present. The State responds that in some cases it
will be impossible to determine which of many possible crimes the
defendant intended to commit, making it unreasonable to require
that the State include the intended crime in the indictment. But
in State v. James, we adopted the Sullivan rule for cases in
which a jury is instructed disjunctively on alternative methods,
which permits jurors to find the defendant guilty of a crime even
though they do not agree as to the method by which the crime was
committed.26 In such cases, the State can charge alternative
target crimes to avoid a defect and present those alternatives to
the jury, obtaining a conviction so long as the jury agrees that
the defendant committed the burglary.
After considering the strong public policy of providing
defendants with adequate notice of criminal charges, we cannot
say that more good than harm would result from a departure27 from
Adkinss requirement that the State specify the target crime in a
burglary indictment. Thus, we continue to require the State to
specify the defendants intended crime in a burglary indictment.
2. Failure to include the target offense in a
burglary indictment cannot be challenged for the
first time on appeal.
We now turn to the question whether Adkins v. State
correctly permitted a defendant to challenge for the first time
on appeal a burglary indictment that failed to identify the
defendants intended crime. The principle of stare decisis
requires that we first consider whether the rule in Adkins was
erroneous when it was decided. Alaska Statute 11.46.310 defines
burglary as a crime in which the person enters or remains
unlawfully in a building with intent to commit a crime in the
building.28 In reaching its conclusion, the Adkins court noted
that the weight of authority required that the intended crime be
specified in the burglary indictment, citing eleven cases from
other jurisdictions for the proposition.29 But the majority of
these cases came from jurisdictions that define burglary in more
limited terms, requiring that the defendant enter with the intent
to commit a felony or other specific type of crime.30
In addressing this issue, several courts, including the
court of appeals in considering Semanciks case, have noted the
split among jurisdictions as to whether the intended offense must
be included in the burglary indictment.31 Generally, in states
where the burglary statute requires that the defendant have
intended to commit a specific type of crime, such as a felony or
theft, the burglary indictment must allege the intended crime and
failure to do so renders the indictment fatally flawed.32 But in
jurisdictions where the burglary statute only requires that the
defendant intended to commit a crime, the burglary indictment is
not invalidated for failure to identify the intended crime.33 The
distinction is logical; as the Iowa Supreme Court noted when
considering the same issue, common law burglary includes the
nature of the intended offense as an element of burglary:
One of the elements of common-law burglary
was that the breaking and entering be with
the intent to commit a felony therein. At
common law[,] no indictment for burglary was
sufficient which failed to state the facts
necessary to show the particular felony
intended to be committed. Thus, at common
law, the indictment obviously had to plead
facts showing a felony was intended
because[,] if anything other than a felony
was intended[,] the breaking and entering did
not constitute burglary. So it is that those
states with burglary statutes which still
require an intent to commit a felony, or
intent to commit a felony or larceny, or
intent to commit other designated crimes, can
logically require that a specific intended
crime be alleged and proved. There is no
similar reason to require it in [a state]
where burglary is a statutory offense and
where [the] burglary statutes require only an
intent to commit any crime.[34]
The Alaska statute requires only that the defendant
intend to commit a crime, placing Alaska in the category of
jurisdictions holding that failure to list the specific offense
is not fatal to a burglary indictment. The Adkins court
erroneously relied on the weight of authority, failing to take
into account the language of the Alaska statute which does not
require inclusion of the specific intended crime as an element of
the offense. Because we conclude that the specific intended
offense is not an element of the crime of burglary, an indictment
failing to include the offense is not fatally defective on this
basis.
Having determined that the Adkins rule which holds
that failure to include the intended offense in the indictment
amounts to a fatal defect that can be raised for the first time
on appeal35 was originally erroneous, the principle of stare
decisis next requires us to consider whether more good than harm
[will] result from a departure from precedent.36 Alaska Criminal
Rules 7 and 12 represent our policy that challenges to
indictments should be brought before trial. Criminal Rule 12(b)
lists the pretrial motions that shall be raised prior to trial,
including defenses and objections based on defects in the
indictment or information.37 Failure to object before trial
constitutes a waiver of the objection.38 And Criminal Rule 7
explicitly announces Alaskas policy on defects of form: No
indictment is insufficient, nor can the trial, judgment or other
proceedings thereon be affected, by reason of a defect or
imperfection in matter of form in the indictment which does not
tend to prejudice the substantial rights of the defendant.39
In Gaona v. State, the court of appeals described the
purpose of the procedural rules as requir[ing] any defect in the
indictment to be brought to the attention of the trial court and
the prosecution.40 The Gaona court listed various undesirable
effects of allowing defendants to challenge indictments for the
first time on appeal: The trial court is denied the opportunity
to rule on the motion before trial; the prosecution is unable to
reindict; witnesses recollection of events may dim; and
defendants are tempted to withhold these motions until appeal.41
And when the State mistakenly fails to specify the intended crime
in the indictment, any ambiguity caused by this defect may be
remedied by moving for a bill of particulars.42 It is simply
against public policy to waste judicial resources by permitting
defendants to knowingly refrain from challenging an indictment
until after conviction.
Because this aspect of the Adkins rule was originally
erroneous and more good than harm will result from the departure,
we overrule Adkins v. State to the extent that it holds that a
failure to include the intended offense in a burglary indictment
is a defect of substance that can be raised at any time. But we
continue to require that the State identify the intended offense
in a burglary indictment and conclude that a failure to do so is
a defect of form that must be raised before trial.
C. The Retroactive Application of Adkins to Semancik
Because our decision establishes a new rule, we must
consider whether to apply it retroactively to Semancik. We
consider three factors when deciding whether to apply a new rule
retroactively or prospectively: (1) the purpose to be served by
the new rule; (2) the extent of reliance on the old rule; and (3)
the effect on the administration of justice of a retroactive
application of the new rule.43
The new rules purpose, the first factor in the test for
retroactivity, is to conserve justice system resources by
preventing the reversal of a conviction due to a technical defect
in the indictment when the defect is challenged for the first
time on appeal. Application of the new rule to Semancik promotes
this policy. The second factor, the extent of reliance on the
old rule, supports retroactive application. While it is true
that a defendant may have relied on the old rule, realizing that
an indictment was defective prior to trial but waiting until the
verdict before raising an objection to it, a defendants ability
to pull the ace from his sleeve44 is not the type of reliance we
want to encourage as a matter of policy. The third factor, the
effect on the administration of justice, also supports
retroactive application; the new rule will not burden the trial
court, as it permits trial judges to correct technical defects
prior to trial and prevents indictments from being challenged on
this basis for the first time on appeal. Thus, all three factors
favor application of our decision to Semancik.
Because we are applying our decision retroactively we
must also determine whether Semanciks rights were prejudiced due
to lack of notice. Criminal Rule 7(c) confines the ability to
challenge a judgment based on defects of form in an indictment to
those defects that tend to prejudice the substantial rights of
the defendant.45 While Semancik points out that the prosecutor
repeatedly referred to Semanciks intent to commit a crime without
specifying the intended crime, the record suggests that Semancik
was not prejudiced by the omission, and he fails to present any
evidence to the contrary.
Semancik was charged with seven counts of assault in
the third degree along with his attempted burglary charge,
providing Semancik with notice of the States theory of the
underlying crime and allowing Semancik to prepare his defense.46
Moreover, Semanciks defense at trial was that he did not intend
to commit any crime: In his closing, Semanciks attorney argued
to the jury that [Semanciks] intent to get into the house was to
go get his dog. That was his intent, not to commit a crime.
Thus, there is no evidence that Semanciks substantial rights were
prejudiced by the defect of form in the indictment.
IV. CONCLUSION
Because we apply the new rule retroactively and because
Semanciks rights were not prejudiced by the indictment, we
REVERSE the court of appealss decision.
_______________________________
1 389 P.2d 915 (Alaska 1964).
2 Semancik v. State, 57 P.3d 682, 682 (Alaska App. 2002).
3 Id.
4 Id. at 683.
5 Semancik, 57 P.2d at 683 (quotation marks omitted).
6 Id.
7 Id.
8 Id.
9 Id.
10 389 P.2d 915 (Alaska 1964).
11 Semancik, 57 P.2d at 686.
12 Adkins, 389 P.2d at 916.
13 Id. at 915-16; Semancik, 57 P.2d at 684.
14 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).
15 Id. (internal quotations and citations omitted);
Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997).
16 389 P.2d 915 (Alaska 1964).
17 Id. at 916.
18 Id. at 915.
19 Id. at 916.
20 Id.
21 Id.
22 Fremgen, 914 P.2d at 1245 (quotations and citations
omitted).
23 369 U.S. 749, 763-64 (1962) (internal citations
omitted).
24 580 P.2d 310, 321.
25 Adkins, 389 P.2d at 916-17.
26 698 P.2d 1161, 1165 (Alaska 1985) (discussing the rule
adopted for jury unanimity in People v. Sullivan, 173 N.Y. 122
(N.Y. 1903)).
27 Fremgen, 914 P.2d at 1245.
28 This is the definition of second degree burglary. AS
11.46.300, defining first degree burglary, states:
(a) A person commits the crime of
burglary in the first degree if the person
violates AS 11.46.310 and (1) the building is
a dwelling; or (2) in effecting entry or
while in the building or immediate flight
from the building, the person (A) is armed
with a firearm; (B) causes or attempts to
cause physical injury to a person; or (C)
uses or threatens to use a dangerous
instrument.
29 389 P.2d at 916.
30 E.g., Bays v. State, 159 N.E.2d 393, 397-98 (Ind. 1959)
(requiring that specific felony be included in burglary charge
where requisite intent for burglary defined as intent to commit
felony); Lewis v. Mayo, 173 So. 346 (Fla. 1937) (same); People v.
Westerberg, 265 N.W. 489 (Mich. 1936) (same); Hooks v. State, 289
S.W. 529 (Tenn. 1926) (same); State v. Allen, 119 S.E. 504, 505-
06 (N.C. 1923) (same) (superseded by statute as held in State v.
Worsley, 443 S.E.2d 68, 73 (N.C. 1994); Lowe v. State, 294 S.W.2d
394, 397 (Tex. Crim. App. 1956) (same).
31 Semancik v. State, 57 P.3d 682, 684-85, 685 n.9&10
(Alaska App. 2002) (identifying multiple cases illustrating the
pattern); State v. Mesch, 574 N.W.2d 10, 13 (Iowa 1997); State v.
Bergeron, 711 P.2d 1000, 1008 (Wash. 1985).
32 Semancik, 57 P.3d at 684, 684 n.9; Mesch, 574 N.W.2d at
13, 14; Bergeron, 711 P.2d at 1008.
33 Semancik, 57 P.3d at 684-85; Mesch, 574 N.W.2d at 13,
14; Bergeron, 711 P.2d at 1008.
34 Mesch, 574 N.W.2d at 13 (citing Bergeron, 711 P.2d at
1008) (quotations and ellipses omitted).
35 389 P.2d at 915-16.
36 Fremgen, 914 P.2d at 1245 (quotations omitted).
37 Alaska Criminal Rule 12(b)(2).
38 Alaska Criminal Rule 12(e) states:
Failure by the defendant to raise defenses or
objections or to make requests which must be
made prior to trial, at the time set by the
court pursuant to section (c), or prior to
any extension thereof made by the court,
shall constitute waiver thereof, but the
court for cause shown may grant relief from
the waiver.
39 Alaska R. Crim. P. 7(c).
40 630 P.2d 534, 537 (Alaska App. 1981).
41 Id.
42 See People v. Williams, 984 P.2d 56, 62-63 (Colo.
1999); State v. Worsley, 443 S.E.2d 68, 74 (N.C. 1994) (defendant
could have remedied lack of definiteness with request for bill of
particulars); State v. Waters, 436 So. 2d 66, 69 (Fla. 1983)
(same).
43 State v. Wickham, 796 P.2d 1354, 1358-59 (Alaska 1990)
(citing State v. Glass, 596 P.2d 10, 13 (Alaska 1979)).
44 Semancik, 57 P.3d at 686.
45 Criminal Rule 7(c) provides in part:
No indictment is insufficient, nor can the
trial, judgment or other proceedings thereon
be affected, by reason of a defect or
imperfection in matter of form in the
indictment which does not tend to prejudice
the substantial rights of the defendant.
46 Although Semanciks proposed jury instruction required
the jury to find that Semancik entered the building with the
intent to commit the crime of Assault, there is no evidence that
Semancik objected to the jury instruction used which required the
jury to find that Semancik entered the building with the intent
to commit a crime. See State v. Frazier, 652 N.E.2d 1000, 1009
(Ohio 1995) (concluding that when intended crime not specified in
burglary indictment, other charges provided defendant adequate
notice of intended crime).
