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Bergman v. State (1/29/2016) ap-2488

Bergman v. State (1/29/2016) ap-2488


                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@  

                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                   



                                                                                                                    Court of Appeals No. A-11652  


                                                             Appellant,                                            Trial Court No. 4FA-12-019 CR  


                                                                                                                                   O  P  I  N  I  O  N  



                                                             Appellee.                                               No. 2488 - January 29, 2016  


                               Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  


                               Fairbanks, Michael P. McConahy, Judge.  


                               Appearances:  David T. McGee, under contract with the Public  


                               Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  


                               Anchorage,  for  the  Appellant.                                        Patricia  L.  Haines,  Assistant  


                               District Attorney, Fairbanks, and Craig W. Richards, Attorney  


                               General, Juneau, for the Appellee.  


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


                               Superior Court Judge.*  



                               Judge MANNHEIMER.  

                               Kevin M. Bergman was convicted of two counts of third-degree criminal                                                                                

mischief - one count for vandalizing mining equipment belonging to another man, and                                                                                                           

        *       Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                       

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

one count for bulldozing three miles of a wilderness trail located on state and borough                                                                                                                                                                      

land near Fairbanks, widening it into a road that was accessible to motor vehicles.                                                                                                                                                                                       

                                           In this appeal, Bergman contends that the evidence presented at his                                                                                                                                                trialwas   

not legally sufficient to support these two convictions.                                                                                                                       

                                           With respect to the count involving                                                                             the vandalism                                of the miningequipment,                      

Bergman argues that the evidence was insufficient to identify him as the person who                                                                                                                                                                                      

damaged the equipment.                                                             But Bergman's arguments hinge on viewing the evidence in                                                                                                                                      

the light most favorable to himself.                                                                                When an appellate court evaluates the sufficiency                                                                               

of the evidence to support a guilty verdict in a criminal trial, we must view the evidence                                                                                                                                                                 

(and the inferences that could reasonably be drawn from that evidence) in the light most                                                                                                                                                                                


favorable to upholding the jury's verdict.                                                                                                 

                                           Viewing the evidence at Bergman's trial in that light, we conclude that the  


evidence was sufficient to convince reasonable jurors that the State had proved its case  


beyond a reasonable doubt.   The evidence was therefore legally sufficient to support  


Bergman's conviction for vandalizing the mining equipment.  


                                           With respect to the count involving the bulldozing of the wilderness trail  


to widen it and facilitate vehicle access,  Bergman argues  that the evidence failed to  


establish that he acted with the culpable mental state required by the statute defining the  




                                           Bergman was charged under AS 11.46.482(a)(1). At the time of Bergman's  


offense, this statute declared that a person commits the crime of third-degree criminal  


mischief if, (1) acting with the intent to damage property of another, and (2) having no  


           1          See,  e.g.,  Dorman v. State                                                     , 622 P.2d 448, 453 (Alaska 1981);                                                                           Spencer v. State                                     , 164   

P.3d 649, 653 (Alaska App. 2007).                                                                           

                                                                                                                                     - 2 -                                                                                                                                 2488

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right to do so, nor any reasonable ground to believe that they have the right to do so, the                                                                                                                                                                                                             

person (3) damages the property of another in an amount of $500 or more.                                                                                                                                                                                                    

                                                Bergman argues that the evidence at his trial was legally                                                                                                                                                        insufficient to   

establish the first of these elements -                                                                                                     i.e., to                    prove   that he acted with the intent to                                                                                            

"damage   property   of   another".     Bergman   asserts   that   the   evidence   unequivocally  

established that his intention in bulldozing the trail was not to damage it, but rather to                                                                                                                                                                                                                 

improve it.                               

                                                We reject Bergman's claim because we conclude that the word "damage"                                                                                                                                                             

in our criminal mischief statute must be interpreted so as to protect an owner's interest                                                                                                                                                                                                

in using or enjoying the property as the owner sees fit - free from alterations that other                                                                                                                                                                                                       

people might wish to perform to make the property "better".                                                                                                                                                              

                                                One analogous case we found is                                                                            People v. Misevis                                                  , 547 N.Y.S.2d 439 (N.Y.                                            

App. 1989), where a defendant was convicted                                                                                                                      of criminalmischief                                                   for hiring                       a contractor   

to widen a public road without consultingthe                                                                                                             town government.   The contractor removed  

trees and fences along the roadway and pushed them (as well as other debris) onto                                                                                                                                                                                                                 


adjoining private property.                                                                          

                                                The defendant was prosecuted under a New York statute that required the  


government   to  prove  that  he  acted  "with  intent  to  damage  property  of  another  


person". 3                              The New York appeals court concluded that the jury could reasonably find  


that this element was proved because the defendant knew that the road belonged to the  



town, and knew that he had no authority to alter the road.  


            2           Misevis , 547 N.Y.S.2d at 439-440.



                        Id., 547 N.Y.S.2d at 440.




                                                                                                                                                  - 3 -                                                                                                                                              2488

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                                    Similarly, in                  People v. Suarez                            , unreported, 2011 WL 3249266 (N.Y. App.                                                                

2011), a New York appeals court upheld the conviction of a defendant who, without                                                                                                                             

permission, decided                                    to beautify his neighbor's Belgian block wall by spray-painting it                                                                                                      

to alter its color.                          

                                   In  Athey v. State                          , 697 S.W.2d 818 (Tex. App. 1985), the Texas Court of                                                                                          

Appeals upheld the criminal mischief conviction of a defendant who removed cabinets,                                                                                                                        

drywall, and floor tiles from the laundry room of a house he was renting.                                                                                                                   The defendant   

claimed that                       he   intended to repair a rotten floor, that he had to remove the cabinets,                                                                                              

drywall, and floor tiles in order to repair the floor, and that he later burned the cabinets                                                                                                                  

                                                                                                                        5   The defendant conceded that he did not  

after he discovered that they, too, were rotten.                                                                                                                                                                           

have the landlord's permission to perform any of this work, but he testified that he never  


intended to damage or harm the landlord's property, and that he would have completed  


restorative work if he had been allowed to stay in the house. 6  


                                   The Texas appeals court concluded that, even under the defendant's version  


of events,  he "intentionally ...  damage[d]" the landlord's house (for purposes of the  


Texas  criminal   mischief  statute)  because  "he  intended  to  remove  the  cabinets,  


 [S]heetrock, and tiles without [the landlord's] consent", even if he might have intended  


to repair the damage later. 7  


                                   Bergman's case is analogous to these decisions.   Even under Bergman's  


version of events, he intentionally altered the trail without the landowners' permission,  


and this alteration significantly impaired the landowners' interests.   (According to the  


testimony at Bergman's trial, the two landowners - the state and the borough - spent  


         5       Athey ,  697 S                   .W.2d  at  820.    

         6       Ibid.  

         7       Ibid.   

                                                                                                            - 4 -                                                                                                       2488

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more than $18,000 to restore the trail.)                                                                                                                                                             Bergman therefore acted with an intent to                                                                                                                                                                       

"damage" the property for purposes of our criminal mischief statute.                                                                                                                                                                                                                                                                          

                                                                The judgement of the superior court is AFFIRMED.                                                                                                                                                                                                               

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