Opinion
Court of Appeals No. A-10253.
April 7, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, Trial Court No. 4FA-07-2660 Cr.
Paul E. Malin, 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 Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Daris B. Sullivan appeals his conviction for fraudulent use of a financial access device (a bank debit card), AS 11.46.285(a). Sullivan was indicted and tried for both the theft of the card and the unauthorized use of it. The jury acquitted Sullivan of stealing the card but convicted him of using the card without authorization. In this appeal, Sullivan argues that the jury's verdicts are logically inconsistent, and that he therefore is entitled to a new trial on the fraudulent use charge.
See DeSacia v. State, 469 P.2d 369 (Alaska 1970) (adopting the rule that when the jury in a criminal case returns inconsistent verdicts of acquittal and conviction on different counts, the defendant is entitled to a new trial on the charges that resulted in convictions).
The debit card at issue in this case belonged to Sullivan's girlfriend at the time, Emily Terhune. At Sullivan's trial, Terhune testified that Sullivan removed the debit card from her purse without her permission on June 27th, 2007, and that Sullivan used the card several times between then and June 29th, until all the funds in Terhune's account were depleted.
The evidence showed that the debit card was used to transact several ATM withdrawals between June 27th and June 29th, totaling over $800. Terhune testified that she did not authorize any of the transactions. Terhune also testified that Sullivan called her later to apologize for taking her money, to explain why he needed this money, and to ask her to drop the charges against him.
Sullivan's defense was that Terhune willingly gave her debit card to Sullivan, and that he used the card with Terhune's permission. Sullivan and Terhune had been involved in a romantic relationship for several months before the alleged thefts, and Sullivan's attorney argued that Sullivan shared Terhune's bank account during this relationship.
To support this defense, Sullivan's attorney presented the testimony of Sheena McNabb, a friend of Sullivan's, who testified that she observed Terhune give Sullivan her debit card on June 27th, and that Terhune told Sullivan "to get the money" before he returned the card.
The relevant portion of the jury instruction on the theft charge told the jurors that the State was required to prove that Sullivan acted with the intent to deprive Terhune of the debit card when he took possession of the card. The relevant portion of the jury instruction on fraudulent use of the debit card told the jurors that the State was required to prove that Sullivan, acting with intent to defraud another person, knowingly used the card to obtain money or other property or services when the use of the card "was not authorized by . . . the person to whom it was issued".
As we explained earlier, the jury found Sullivan not guilty of stealing the debit card, but they found him guilty of fraudulently using the card.
When the jury returned these verdicts, Sullivan's attorney immediately objected that the verdicts were inconsistent. The defense attorney argued that if Sullivan had not stolen the debit card, then it was illogical for the jury to find that Sullivan used the card fraudulently.
After discussing the issue with counsel, the trial judge — Superior Court Judge Douglas L. Blankenship — asked the jurors to "please explain why the jury returned a verdict of not guilty in Count I and a verdict of guilty in Count II." The jury responded that they had concluded that the evidence was insufficient to prove the theft charge but that, with regard to the fraudulent use charge, they had concluded that the evidence established (beyond a reasonable doubt) that Sullivan, acting with intent to defraud, knowingly used the debit card to obtain property or services when his use of the card was not authorized by Terhune.
After receiving the jury's explanation of the verdicts, Judge Blankenship concluded that the verdicts were logically consistent.
In this appeal, Sullivan renews his argument that the jury's verdicts are logically inconsistent. But as Judge Blankenship observed, there is no logical inconsistency between the jury's conclusions that (1) there was at least a reasonable possibility that Sullivan took possession of the debit card with Terhune's consent, but that (2) Sullivan then used the card in ways that he knew were unauthorized ( i.e., beyond the scope of Terhune's consent).
Accordingly, we agree with Judge Blankenship that the verdicts are consistent. The judgement of the superior court is AFFIRMED.