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Taylor v. State (9/16/2011) ap-2325

Taylor v. State (9/16/2011) ap-2325

        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: 

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                                                             Court of Appeals No. A-10244 
                                Appellant,                  Trial Court No. 1KE-07-657 Cr 

                                                                    O    P  I  N  I  O  N 

                                Appellee.                  No. 2325    -   September 16, 2011 

                Appeal     from    the  Superior    Court,   First   Judicial   District, 
                Ketchikan, William B. Carey, Judge. 

                Appearances:      David D. Reineke, Assistant Public Defender, 
                and    Quinlan    Steiner,  Public   Defender,    Anchorage,     for  the 
                Appellant.    Terisia K. Chleborad, Assistant Attorney General, 
                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 
                John J. Burns, Attorney General, Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,  and   Mannheimer      and  Bolger, 

                MANNHEIMER, Judge. 

                Lonnie D. Taylor appeals his conviction for second-degree theft (theft of 
property valued at $500 or more). 1       In our previous decision in this case, Taylor v. State, 

    1   AS 11.46.130(a)(1). 

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

Alaska App. Memorandum Opinion No. 5643 (September 22, 2010), 2010 WL 3719523, 

we   concluded   that   the   evidence   presented   at   Taylor's   trial   was   legally   sufficient   to 

support a finding that the stolen property (a specialty bicycle) was worth at least $500. 

However,   we   remanded   Taylor's   case   to   the   superior   court   for   reconsideration   of 

Taylor's claim that, even though the evidence was minimally sufficient to prove that the 

bicycle was worth $500 or more, the evidence favoring the State on this point was so 

questionable or weak that the jury's verdict was against the weight of the evidence, and 

that the superior court therefore should have granted Taylor a new trial under Alaska 

Criminal Rule 33.  Id. at *1-2. 

                 Pursuant     to  our   directive,    Superior    Court    Judge    William     B.   Carey 

conducted a thorough review of the evidence at Taylor's trial.                 Judge Carey concluded 

that if he, himself, had been a juror at Taylor's trial, he would have had a reasonable 

doubt as to whether the bicycle was worth $500, and (based on this doubt) he would 

have voted to acquit Taylor. 

                 However,       Judge    Carey    also   found    that  this  matter    was    reasonably 

debatable, and that reasonable jurors could reach a different conclusion on this issue. 

The judge declared that he "[did] not find that the evidence [of Taylor's guilt] was so 

slight   and   unconvincing   that   the   [jurors'   guilty]   verdict   can   be   [called]   repugnant, 

unreasonable[,] or unjust." 

                 In other words, Judge Carey found that the jurors at Taylor's trial could 

reasonably      conclude     that  the  State   had   proved    its  case   against   Taylor    beyond     a 

reasonable doubt.  The judge explained:  "[The evidence] may not have been enough to 

convince [me] that the bike had a value of $500.00, but ... I cannot find that the verdict 

... was plainly unjust or unreasonable based on the nature of the evidence presented." 

For this reason, Judge Carey concluded that he should not grant Taylor a new trial under 

Criminal Rule 33. 

                                                   - 2 -                                              2325

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

                In this renewed appeal, Taylor argues that Judge Carey misunderstood the 

test for granting a new trial in this type of situation.         Taylor notes that when a judge 

decides whether the verdict in a criminal case is against the weight of the evidence for 
purposes of Criminal Rule 33, the judge sits as a "thirteenth juror". 2         The judge does not 

defer to   the   jury's assessments of witness credibility or the weight of the evidence; 
rather, the judge must reach their own independent assessment of the evidence. 3 

                Based on these principles, Taylor argues that Judge Carey was obliged to 

grant Taylor a new trial once the judge concluded that he, personally, had a reasonable 

doubt as to whether the State had proved that the bicycle was worth at least $500. 

                But even though a judge sits as a "thirteenth juror" in the sense that the 

judge is required to independently assess the weight of the evidence and the credibility 

of the witnesses without deference to the jury's view of these matters, Criminal Rule 33 

does not vest judges with a veto power over every verdict that they personally disagree 

with.   The judge should not grant a new trial under Rule 33 merely because the judge 

concludes that he or she would have reached a different verdict from the one the jurors 

rendered.    Rather, as the Alaska Supreme Court declared in Dorman v. State, 

                [A judge's authority to grant a new trial under Criminal Rule 
                33]   should    be  exercised   with   caution,   and   ...  should  be 
                invoked   only   in   exceptional   cases   in   which   the   evidence 
                preponderates heavily against the verdict. 

622   P.2d   448,   454   (Alaska   1981)   (quoting   Charles   Wright,  Federal   Practice   and 

Procedure (Criminal) (1969),  553, Vol. 2, p. 487). 

    2   Dorman v. State, 622 P.2d 448, 454 (Alaska 1981). 

    3   Kava v. American Honda Motor Company, Inc., 48 P.3d 1170, 1177 (Alaska 2002); 

New v. State, 714 P.2d 378, 381-82 (Alaska App. 1986); Maloney v. State, 667 P.2d 1258, 
 1267-68 (Alaska App. 1983). 

                                                - 3 -                                             2325 

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

               Thus, the fact that the judge personally disagrees with the verdict does not, 

by itself, warrant the judge in ordering a new trial.    As this Court explained in Howell 

v. State, 917 P.2d 1202, 1212 (Alaska App. 1996), a judge should vacate a jury's verdict 

and grant a new trial under Criminal Rule 33 only when the evidence supporting that 

verdict "[is] so slight and unconvincing as to make the verdict plainly unreasonable and 

unjust".  Beyond the fact of personal disagreement with the jury's decision, the judge 

must further conclude that the evidence is so one-sided that the jury's contrary view of 

the case is "plainly unreasonable and unjust". 

              Accord :  United States v. Ferguson, 246 F.3d 129, 133-34 (2nd Cir. 2001); 

United States v. Sanchez, 969 F.2d 1409, 1413-14 (2nd Cir. 1992); State v. Spinale, 937 

A.2d 938, 946-47 (N.H. 2007); State v. Baird, 908 A.2d 475, 482 (Vt. 2006); State v. 

Ladabouche, 502 A.2d 852, 856 (Vt. 1985). 

               See, in particular, the discussion of this point of law in In re Petition for 
Writ of Prohibition, 539 A.2d 664, 683-87 (Md. App. 1988). 4       After an extensive review 

of the case law and the legal commentary on this matter, the Maryland court concluded: 

                      We hold that [a trial judge has the] authority to weigh 
               the evidence and to consider the credibility of witnesses when 
               [the judge decides a] motion for new trial.     ... [But we] do 
               not embrace the thirteenth juror rule eo nomine [i.e., by that 
               name], for ... the very name of that rule may tend to produce 
               confusion.   ... [A] trial judge is not at liberty to set aside a 
               verdict of guilt and to grant a new trial merely because the 
              judge would have reached a result different from that of the 
              jury's.  Motions for new trial on the ground [that the verdict 
               is against the] weight of the evidence are not favored and 
               should   be  granted   only  in  exceptional   cases,  when   the 

    4  Disapproved on other grounds in State v. Manck, 870 A.2d 196 (Md. 2005). 

                                            - 4 -                                         2325 

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

                evidence preponderates so heavily against the verdict that it 
                would be a miscarriage of justice to let the verdict stand. 

In re Petition for Writ of Prohibition, 539 A.2d at 686-87. 

                Judge Carey's written   decision   shows   that   he understood and correctly 

applied these principles.        Although he personally would   not have reached the same 

decision   as   the   jurors   who   heard   Taylor's   case,   he   acknowledged   that   the   evidence 

reasonably supported the jurors' decision, and he concluded that their verdict was not 

plainly unreasonable and unjust. 

                Accordingly, Judge Carey correctly denied Taylor's motion for a new trial. 

The judgement of the superior court is AFFIRMED. 

                                                  - 5 -                                             2325
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