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Merculief v. State8/18/2004
n Merculief permission to use the car - and that the only way for the State to fulfill this obligation was to call Holmes to the stand and have him testify on this issue.
We disagree with the second half of this assertion. As Judge Pengilly correctly recognized, the State could rely on the circumstances of the taking to prove that Merculief had no right to use the car (nor any ground to believe that she had this right).
The Alaska Supreme Court addressed this same issue in Randall v. State, 583 P.2d 196 (Alaska 1978). The defendant in Randall was charged with the larceny of a vacuum pump that was removed from the back of a pickup truck. The owner of the truck had left the truck (and its contents) in the safekeeping of a friend named Fred Lanouette. The theft occurred while the truck was in Lanouette's custody. But Lanouette had moved from Alaska by the time of trial, so he did not testify.
Randall argued that, in the absence of Lanouette's testimony, the State could not prove beyond a reasonable doubt that Randall had committed a trespassory taking - i.e., that Randall had taken the vacuum pump without Lanouette's permission. But the supreme court held that the non-consensual nature of the taking could be proved by circumstantial evidence. The evidence in Randall showed that the defendant took the vacuum pump by stealth, that he abandoned it shortly after a bystander asked him what he was doing with the pump, and that he then attempted to flee from the scene.
The supreme court concluded that this was "ample circumstantial evidence to support a finding ... that Randall took the pump without [the owner's] consent".
In Merculief's case, Holmes and Middleton were domestic partners, and the car was continuously in their possession until Merculief took it. The taking occurred at one o'clock in the morning, after Middleton drove to the grocery to buy food and left the car in the parking lot with the engine running. Merculief was intoxicated at the time. Middleton declared that she did not know Merculief and had never given her permission to use the car. Middleton also testified that she believed she would have known if Holmes had given anyone else permission to use the car. There was no other evidence suggesting that Merculief had any prior connection to Holmes, Middleton, or their vehicle.
Viewing this evidence in the light most favorable to the jury's verdict, reasonable jurors could conclude (beyond a reasonable doubt) that when Merculief took the car from the grocery store parking lot, she had no permission to use the car, and no reasonable ground for believing that she had permission. Thus, the evidence is sufficient to support Merculief's conviction for vehicle theft.
Conclusion
The judgment of the superior court is AFFIRMED.
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