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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).