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TALLENT v. STATE12/26/1997
Paul A. Tallent was convicted of second-degree theft under AS 11.46.130(a)(6)(C). This statute provides that a theft of between $50 and $500 — an offense that would normally be third-degree theft — constitutes second-degree theft if the defendant has been convicted of similar thefts twice before in the preceding five years. Tallent's appeal raises two issues, both involving the question of whether the jury should have been informed of his prior convictions.
The first issue is whether the existence of a defendant's prior theft convictions is an element of the offense of second-degree theft under AS 11.46.130(a)(6). Tallent argues that the defendant's prior convictions are not an element of the crime but are, instead, simply a factor that enhances the defendant's sentence. Accordingly, Tallent argues that the existence of his prior convictions was an issue for the court, not the jury. As explained below, we reject Tallent's construction of the second-degree theft statute; we conclude that the existence of a defendant's prior convictions is an element of the offense.
The second issue is whether, even though the existence of prior convictions is an element of the offense, the trial judge is nevertheless empowered to keep this element of the offense from the jury if (1) the defendant offers to stipulate to the prior convictions and (2) the defendant agrees to waive jury trial on this element. We conclude that we need not resolve this issue. Even though Tallent's trial judge handled the matter of the prior convictions in a different way, the way chosen by the trial judge was proper and did not prejudice Tallent.
Facts of the case
On October 31, 1995, Paul Tallent was in an Anchorage Sears store. A store security guard was watching Tallent on a surveillance video monitor. The security guard observed Tallent grab an object from the perfume counter and then walk out of the store. The security guard and a companion followed Tallent to a gas station across the street, where they confronted him. Tallent was holding a bottle of perfume sold by Sears for $62.50; he also had a plastic bag containing an identical bottle of perfume and a thermostat sold by Sears for $54.99. Tallent had no wallet, no identification, no money, no credit cards, and no receipt for the items in his possession. The security guards arrested Tallent and summoned the Anchorage police. Tallent was subsequently indicted for second-degree theft, based on his prior theft convictions.
Before his trial began, Tallent asked the court to prohibit the State from introducing evidence of his prior theft convictions. Tallent argued that he would be unduly prejudiced if the jury learned that he had previously been convicted of theft. He offered to concede the existence of the prior convictions.
The prosecutor replied that he did not oppose resolving the issue of Tallent's prior convictions by stipulation, but he did oppose Tallent's proposal to withhold this issue from the jury. The prosecutor argued that Tallent's prior theft convictions were an element of the offense, a factual issue that the State was obliged to prove beyond a reasonable doubt to the jury. The prosecutor feared that if this issue was withheld from the jury, any resulting verdict would be defective.
The trial judge, Superior Court Judge Larry D. Card, acknowledged that evidence of Tallent's prior theft convictions might prejudice the jury's consideration of the current theft charge. He inquired if Tallent had considered waiving a jury altogether and having the case tried to the court. Tallent's attorney indicated that Tallent was not willing to waive jury trial.
Judge Card then ruled that th
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