GORDON KAMHOLZ v. STATE OF ALASKA (2011)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Early one winter morning, Mr. and Ms. Smith were awakened by loud noises outside their residence in Big Lake. When they got up, they found they had no electricity and they had no dial tone on their home telephone.   The Smiths looked out their bedroom window to locate the noises, and they saw a man running into their garage.

Mr. Smith grabbed his shotgun and ran to the front door.   Then he saw two men walk out of the garage.   Mr. Smith fired two rounds to “get their attention.”   One man ran back into the garage, and the other man ran away.   A few seconds later, the first man came back out of the garage and ran toward the street.

Mr. Smith called the state troopers on his cell phone, and Trooper Duane Leventry responded about ten minutes later.   Leventry had attended tracking school in the military.   He followed one set of footprints from the Smiths' garage through the woods to the open door of Kamholz's residence about a mile away.   Kamholz's pants were soaking wet, and his shoes still had fresh snow on them.   Leventry testified that the tread pattern on Kamholz's shoes was similar to the footprints he had followed from the Smiths' garage.

Leventry arrested Kamholz and drove back to the Smiths' residence.   There, the trooper discovered that the telephone line had been disconnected and the outside telephone box had been destroyed.   He found one set of footprints next to the telephone box—footprints that matched Kamholz's shoes.   Leventry also found Kamholz's footprints along with another set of prints next to the electrical power box.

Leventry and Ms. Smith looked around the garage, and found that the steering column and the ignition switch of the Smiths' Chevy Suburban had been destroyed.   They also found a hammer belonging to the Smiths on the front seat of the Suburban.

The State charged Kamholz with second-degree burglary, third-degree criminal mischief, and second-degree criminal trespass.   At trial, the Smiths and Trooper Leventry testified as detailed above.

After this evidence had been presented, Kamholz moved for a judgment of acquittal, but Superior Court Judge Kari Kristiansen denied the motion.   The jury returned guilty verdicts on all three charges.

On appeal, Kamholz argues that there was insufficient evidence supporting his convictions for second-degree burglary and third-degree criminal mischief.   To review these claims, we view the evidence in the light most favorable to the verdict and ask whether a reasonable juror could conclude that the defendant's guilt had been established beyond a reasonable doubt.¹

To prove second-degree burglary, the State was required to establish that Kamholz had “enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime in the building.” ²  In context, the evidence was required to show that Kamholz entered the Smiths' garage and that he intended to steal the Suburban inside.

A juror could reasonably conclude that Kamholz had been inside the Smiths' garage without their permission.   Leventry followed a trail of footprints from the Smiths' garage to Kamholz's residence nearby.   Kamholz's pants were soaking wet and his shoes were covered with fresh snow, which was consistent with the trooper's observation that the footprints had passed through woods filled with knee-deep snow.

A juror could also reasonably conclude that Kamholz intended to steal the Smiths' Suburban.   The evidence suggested that Kamholz and his companion shut off the electrical power, which prevented the Smiths from using their lights to see them.   And the evidence suggested that Kamholz disconnected the telephone line, which prevented the Smiths from using their home telephone to call the authorities.   Kamholz and his companion also destroyed the Suburban's steering column in the area of the ignition switch, which suggested that they intended to hot-wire the vehicle.

Based on these inferences, a reasonable juror could conclude that Kamholz committed the crime of burglary by his own misconduct or that he was accountable for the misconduct of his companion.³

Kamholz argues that his mere presence at the scene of a crime is insufficient to establish accomplice liability.⁴  But the evidence suggested more than Kamholz's mere presence at the crime scene.   The evidence suggested that Kamholz disconnected the Smiths' telephone line, so they could not call the authorities while Kamholz or his companion hot-wired the Suburban.   At the very least, this evidence was sufficient to suggest that Kamholz was liable as an accomplice.⁵

Kamholz also argues that there was insufficient evidence that he committed the crime of criminal mischief in the third degree by damaging the Smiths' Suburban.⁶  He points out that there was no evidence proving which of the two men destroyed the steering column.   But the State did not have to prove which man actually held the hammer.   The jury could conclude that Kamholz was legally accountable for the conduct of his companion because there was evidence that Kamholz had rendered assistance with the intent to facilitate the commission of this offense.⁷

A reasonable juror could conclude that Kamholz disconnected the telephone line so that Kamholz or his accomplice (or both) could hot-wire the Suburban without interference by the authorities.   The Smiths' observations and the footprint evidence also suggested that Kamholz was present inside the garage when the Suburban was damaged.   Accordingly, a reasonable juror could conclude that Kamholz either damaged the vehicle himself or that he was legally accountable for his companion's misconduct.

We therefore AFFIRM the superior court's judgment on both counts.

FOOTNOTES

FN1. Silvera v. State, 244 P.3d 1138, 1142 (Alaska App.2010)..  FN1. Silvera v. State, 244 P.3d 1138, 1142 (Alaska App.2010).

FN2. AS 11.46.310(a)..  FN2. AS 11.46.310(a).

FN3. See Andrew v. State, 237 P.3d 1027, 1038 (Alaska App.2010) (“When criminal liability exists, it is immaterial whether the elements of the crime are satisfied by the defendant's own behavior, or by the behavior of another person for which he is accountable, or by both.”)..  FN3. See Andrew v. State, 237 P.3d 1027, 1038 (Alaska App.2010) (“When criminal liability exists, it is immaterial whether the elements of the crime are satisfied by the defendant's own behavior, or by the behavior of another person for which he is accountable, or by both.”).

FN4. See id. at 1044–45..  FN4. See id. at 1044–45.

FN5. See id. at 1045 (holding that a defendant's presence at the scene of a burglary was sufficient to establish complicity, when coupled with evidence that she had acted as a lookout and assisted with transporting stolen property)..  FN5. See id. at 1045 (holding that a defendant's presence at the scene of a burglary was sufficient to establish complicity, when coupled with evidence that she had acted as a lookout and assisted with transporting stolen property).

FN6. See AS 11.46.482(“(a) A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right, (1) with intent to damage property of another, the person damages property of another in an amount of $500 or more.”)..  FN6. See AS 11.46.482(“(a) A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right, (1) with intent to damage property of another, the person damages property of another in an amount of $500 or more.”).

FN7. See AS 11.16.110(2)..  FN7. See AS 11.16.110(2).

BOLGER, Judge.