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
BOLGER, Judge.
Anchorage Police Officer Derek Sitz stopped Duane Jennings for a traffic violation while Jennings was driving a truck belonging to Jamie Cunningham. Cunningham's truck had been stolen from a parking garage a few weeks earlier. Cunningham did not know Jennings, and he did not give Jennings permission to drive his truck.
Before the truck was stolen, the ignition switch was undamaged, and a key was required to start the vehicle. But after the traffic stop, Anchorage Police Officer Jason Allen discovered that the plates around the switch had been removed, so that the ignition wiring was exposed and dangling. The switch was broken, so that it could revolve freely and start the truck without a key.
Jennings gave evasive answers when Officer Sitz asked him for his name, his date of birth, and his social security number. He said that he had received the truck from his two passengers, whom he described as "crack heads." Sitz asked Jennings about the fact that the ignition had been damaged and there was no key in the ignition. Jennings responded that, given the character of his companions, he could not be sure about whether the truck was stolen.
Jennings was charged with vehicle theft in the first degree and theft in the second degree. Sitz, Allen, and Cunningham testified at Jennings's trial as detailed above. Jennings made a motion for a judgment of acquittal at the conclusion of the State's case, but the trial judge denied the motion. The jury convicted Jennings of both charges, but the separate counts were merged at sentencing.
In this appeal, Jennings argues that there was insufficient evidence to support his convictions. When we review this issue, we are required to uphold a verdict "if any reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt."1
To prove first-degree vehicle theft, the State was required to show that Jennings drove Cunningham's truck, "having no right to do so or any reasonable ground to believe [that he had] such a right."2 To prove second-degree theft, the State was required to show that Jennings had received stolen property, that he recklessly disregarded the fact that the property was stolen, and that the value of the stolen property was $500 or more.3 Jennings argues the prosecution failed to prove that he had no reasonable ground to believe that he had the right to drive Cunningham's truck and similarly, that the evidence did not establish that he recklessly disregarded the fact that the truck was stolen.
Jennings argues that the State's evidence leaves open the possibility that he did not realize that the truck had been stolen. His argument thus views the evidence in the light most favorable to his innocence. But when we review the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict.4
Viewed in this light, the evidence was sufficient to convince a reasonable juror that Jennings was guilty of first-degree vehicle theft and second-degree theft. A reasonable juror could conclude that Jennings should have known that the truck was stolen based on the damage to the ignition switch. A reasonable juror could conclude that Jennings implicitly admitted to Officer Sitz that he knew his two passengers had probably stolen the vehicle. And a reasonable juror could conclude that Jennings's evasive responses about his identity suggested that he was trying to avoid responsibility for this crime.
Jennings also argues that the State failed to prove he had committed a "trespassory taking" as required by Dobberke v. State.5 In Dobberke, the defendant had retained a rental vehicle beyond the term of the rental agreement.6 We held that "the judge should have specifically instructed the jury that Dobberke's initial taking [of the vehicle] had to be trespassory to convict [him] of first-degree vehicle theft."7 Otherwise there is a substantial overlap between this crime and the misdemeanor crime of second-degree vehicle theft, which applies to circumstances where a person retains a rental vehicle beyond the term of the rental agreement.8
In Jennings's case, the State proposed that the court should instruct the jury that, before Jennings could be convicted of first-degree vehicle theft, the State had to prove that, when Jennings initially drove the truck, he had no reasonable ground to believe he had the right to do so. The State cited the Dobberke case as support for this instruction. The trial judge stated that this language was required by Dobberke, and the defense attorney agreed. The defense attorney did not raise this issue when he made his motion for a judgment of acquittal. But we assume that the judge applied the law as stated in this instruction when he denied Jennings's motion.
We are not certain that this instruction would fully address the problem we identified in Dobberke if this was a case where the vehicle was initially taken with the owner's permission. But in this case, there is no potential overlap with the elements of second-degree vehicle theft. In this case, there was no dispute that the truck was stolen from its rightful owner.
Under these circumstances, Jennings's conviction of first-degree vehicle theft is adequately supported by the evidence outlined above. A reasonable juror could have concluded that Jennings knew the truck was stolen when he took possession of the vehicle.
Jennings also argues that his sentence of fifty months' imprisonment is excessive. But Jennings's sentence fell within the three-to-five year presumptive sentencing range that applies to his circumstances — a third felony offender convicted of a class C felony.9 A defendant may not appeal a sentence on the ground that it is excessive if the sentence falls within the applicable presumptive range.10 So we must transfer this issue to the Alaska Supreme Court for consideration as a petition for sentence review.11
We AFFIRM the judgment of conviction and TRANSFER the sentence issue to the Alaska Supreme Court.
