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Merculief v. State8/18/2004
Laura M. Merculief was convicted of first-degree vehicle theft (i.e., joyriding), as well as driving while intoxicated, driving while her license was suspended, and refusing to submit to a breath test. In this appeal, she challenges the sufficiency of the evidence to sustain her vehicle theft conviction. In particular, Merculief contends that the State relied solely on inadmissible hearsay testimony to establish (1) who owned the vehicle, and (2) the fact that Merculief did not have the owner's permission to drive the vehicle.
Underlying Facts
Merculief was charged with the theft of a 1975 Lincoln, Alaska license number CHL 779. The vehicle in question was owned by William Holmes. At approximately one o'clock in the morning of October 24, 2002, Holmes's girlfriend, Jacqueline Middleton, drove the car to the Safeway grocery in Fairbanks. When Middleton went into the store, she left the engine running and the doors unlocked. When she came out of the store about a half hour later, she saw the car being driven away, headed into the parking lot of the adjacent Fred Meyer store. The car later jumped the curb and crashed into a rack of shopping carts.
The driver was Merculief. When the police arrived, Merculief was still sitting in the driver's seat of the now-stationary vehicle; she was visibly intoxicated.
The defense motion for a protective order at the beginning of the trial
The owner of the car, William Holmes, was not available as a witness at Merculief's trial. At the beginning of the trial, Merculief's attorney asked the trial judge - Superior Court Judge Charles R. Pengilly - to issue a protective order barring the State from introducing evidence through any other witness of "any information that could be attributable to Mr. Holmes".
On appeal, Merculief characterizes the defense attorney's motion as an attempt to bar the State from proving Holmes's ownership of the car by any means other than Holmes's personal testimony. But, as we are about to explain, the record shows that this was not the defense attorney's purpose for seeking the protective order.
When the defense attorney argued the protective order to Judge Pengilly, her announced aim was to stop the State from trying to prove (other than through Holmes's testimony) that Holmes had not given Merculief permission to take the car:
Defense Attorney: I think [the State is] going to need to show that ... my client had no right to drive this vehicle. They're going to have to do that by producing someone who would have had authority to ... give someone the right to drive the vehicle. And I think that the Court should issue a protective order prohibiting the State from eliciting [evidence of] any statements or any information that could be attributable to Mr. Holmes from any other witness.
The Court: [From the State's offer of proof,] Jacqueline Middleton will ... testify that she was in possession of the car, with the owner's permission, and [that] she didn't give permission to anyone else to take it[.] ...
ou don't think that's good enough?
Defense Attorney: I don't think that's going to be good enough to prove the [State's] case, no. I think the State has a burden to show ... that my client had no right to drive the vehicle, or any reason to think she did.
The Court: Why isn't [the State's offer of proof] an adequate showing?
Defense Attorney: Because it's very possible that Mr. Holmes gave my client permission to drive the vehicle. ... I mean, you can give many people permission to drive your vehicle. ...
The Court: it's your position that, as a matter of law, [the S
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