IN THE COURT OF APPEALS OF THE STATE OF ALASKA. Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge.

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1 NOTICE 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 authority for any proposition of law. IN THE COURT OF APPEALS OF THE STATE OF ALASKA DONALD LYNN HENSON, Appellant, Court of Appeals No. A Trial Court No. 3KN CR v. STATE OF ALASKA, Appellee. MEMORANDUM OPINION No January 7, 2015 Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge. Appearances: Paul E. Malin, Law Offices of Christine Schleuss, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge and Hanley, District Court Judge. * Judge ALLARD. A jury convicted Donald Lynn Henson of theft in the second degree for stealing merchandise from a Fred Meyer store in Soldotna. At trial, Henson and the State * Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

2 actively disputed whether the market value of the items Henson stole exceeded the $500 required to convict him of second-degree theft. The parties also disputed how the jury should assess the market value of the items. Although these issues were contested, the superior court refused Henson s request to instruct the jury on the definition of market value. The jury was therefore left to choose between the parties competing legal definitions of the term. We conclude that the court s refusal to instruct the jury on this legal issue was error. Because we cannot say the error did not appreciably affect the jury s verdict, we reverse Henson s conviction and remand his case for a new trial. Background facts and procedural history In May 2011, Henson stole fishing equipment and motor oil from a Fred Meyer store in Soldotna. The total retail price of the items was $ Henson was charged with second-degree theft for stealing property valued at $500 to $25, At trial, Henson argued that he should be acquitted of second-degree theft because, notwithstanding the sticker price of the items he stole from Fred Meyer, the market value of the items was less than $500. To support this claim, Henson elicited testimony that anybody who had a Fred Meyer rewards card, including Henson, was eligible for a special coupon and could have purchased the items at a discounted price for less than $500. He also elicited testimony that comparable items might be available for less at other stores in the area or online. 1 Former AS (a)(1), amended by ch. 83, 4, SLA 2014 (increasing the minimum for second-degree theft to $750)

3 During discussion of jury instructions, Henson asked the superior court to instruct the jury on market value. 2 The court declined to give an instruction unless the jury asked for further guidance on the meaning of the term which the jury never did. The court also allowed the prosecutor to argue to the jury, over Henson s th objection, that the sticker price of the items Henson stole on May 5, 2011, 6 p.m., at Fred Meyer[] was dispositive of the market value of the items. Henson argued, in turn, that the jury was not bound by the Fred Meyer sticker price and could consider the discount Fred Meyer offered, as well as prices charged elsewhere for comparable items, in assessing the market value of the stolen items. The jury convicted Henson of second-degree theft. He appeals. Why we conclude that Henson is entitled to reversal of his conviction In our recent decision in Morris v. State, which was issued after the briefing was completed in this case, we explained that the market value of property is the amount at which the property would change hands, between a willing buyer and a willing seller, neither being under compulsion to buy or sell and both having knowledge of the relevant facts. 3 This means that the market value of an item is not necessarily the same as the price at which it was offered for sale, or the price at which it was purchased. 4 2 Henson s proposed instruction was based on the superseded pattern jury instruction on market value discussed in our decision in Cramer v. State, 1998 WL (Alaska App. July 22, 1998) (unpublished) P.3d 1244, (Alaska App. 2014) (quoting Black s Law Dictionary 597 (6th ed. 1990)). 4 Moore, 334 P.3d at

4 In Morris, we stated that an item s retail price could be prima facie evidence of its market value, but that a defendant could rebut the presumption that the market value was reflected in the retail price by, for example, offering evidence that there are no willing buyers at the alleged price; [or that] even though there is a willing buyer at the alleged price, the price is unreasonable in light of [a] local competitor s prices for the same or similar items; or... that the seller customarily sold the property at a discounted price. 5 As we just explained, the superior court allowed Henson to introduce some evidence suggesting that the Fred Meyer retail price for the items did not reflect their true market value. Henson s attorney elicited testimony that many Fred Meyer customers (including Henson himself) had Fred Meyer rewards cards that would have allowed them to purchase these items for less than $500. The defense attorney also elicited testimony that comparable items might be available at other local stores or online for less than $500. But there is a significant possibility that the jury disregarded as irrelevant Henson s evidence of market value. As we noted above, the trial judge refused to instruct the jury on the legal definition of market value, and the judge allowed the prosecutor to argue (over defense objection) that the market value of the stolen items was equal, as a matter of law, to their sticker prices at the Fred Meyer store at the time of the offense. If the jurors accepted the prosecutor s view of the law, they would have had no reason to consider Henson s contrary evidence of market value. 5 Id. at 1249 (quoting Commonwealth v. Hanes, 522 A.2d 622, 625 (Pa. Super. 1987)) (first set of brackets added in Morris)

5 We conclude that the court erred in failing to instruct the jury on the legal meaning of market value. 6 We also conclude that the error was not harmless. 7 To convict Henson of second-degree theft, the State had to prove that Henson stole items valued at $500 or more. 8 The jury convicted Henson of stealing items priced at $ Thus, Henson would have been entitled to an acquittal of second-degree theft if he convinced the jury that the market value of the stolen items was just $10.47 less than the Fred Meyer retail price. Had the jury been properly instructed on the definition of market value, it might have concluded that the market value of the stolen items was lower than its sticker price, given the discount available to rewards card holders and/or the lower prices at other stores in the area. Because we conclude that the superior court s error in refusing to instruct the jury on the definition of market value could have appreciably affected the jury s verdict, Henson is entitled to a new trial. Conclusion for a new trial. We REVERSE Henson s second-degree theft conviction and REMAND 6 See Moore, 334 P.3d at 1250 (Mannheimer, C.J., concurring) (noting that the superior court s refusal to instruct the jury on the definition of market value was problematic, but concluding that there was no reversible error because the market value of the stolen items was not disputed at trial). 7 See Ervin v. State, 761 P.2d 124, 127 (Alaska App. 1988); Love v. State, 457 P.2d 622, (Alaska 1969). 8 See former AS (a)(1), (b) (2012)