Semancik v. State

¶1dissenting.

¶2The State charged Semancik with several offenses, including one count of attempted burglary in the first degree. A person commits burglary in the first degree if he enters *687a dwelling with the intent to commit a crime.1 Although it appears that the State could have charged Semancik with a completed burglary for breaking the window of his neighbor’s house and putting his arm through the window,2 the State’s theory was that this action constituted a substantial step towards burglary and charged the offense as an attempted burglary. In the indictment, the State never specified what crime Semancik intended to commit when he entered his neighbor’s house. But Semancik never moved to dismiss the indictment or seek a bill of particulars. Furthermore, Semancik did not object to the court’s jury instructions. From the record, it is clear that the State alleged that the crime which Semancik intended to commit was assault. Semancik argued to the jury that his sole intention was to retrieve his dog and that he had no intention of committing an assault. The jury rejected this argument.

¶3Now, for the first time on appeal, Seman-cik points out that the indictment did not specify that he intended to commit an assault in the dwelling. He relies on Adkins v. State,3a case decided by the Alaska Supreme Court nearly forty years ago. The State concedes that Adkins appears to require this result but argues that Adkins was wrongly decided.

¶4As a lower court, we are bound by the decisions of the Alaska Supreme Court. And given the State’s position, I certainly respect my colleagues’ decision concluding that Adkins is controlling. But we do have a duty to review a concession by the State to make sure that the concession “is supported by the record on appeal and has legal foundation.”4 And Adkins, as interpreted by Semancik, seems to me to be contrary to supreme court decisions decided subsequent to Adkins. For instance, in Lwpro v. State5and Thomas v. State6the Alaska Supreme Court held that so long as an indictment gives the defendant sufficient notice of the charge to enable him to prepare his defense and to be protected against double jeopardy, the indictment is sufficient even if it does not set out every necessary element of the crime.7

¶5Furthermore, Alaska Criminal Rule 12(b)(2) requires motions against an indictment to be made before trial. The policy behind the rule is clear. This case presents an excellent example. If Semancik had pointed out the defect in the indictment before trial, the prosecution could easily have cured the problem. By not pointing out the problem in the indictment, Semancik did not suffer any prejudice: it was obvious that the State was charging him with attempting to enter the neighbor’s dwelling with the intent to commit an assault. By not objecting, Semancik was able to go to trial on the attempted burglary charge without risk. When the jury rejected his defense, Seman-cik was able to have his conviction reversed. This is obviously terrible policy. Case law from other states with burglary statutes similar to Aaska appears to universally recognize this. These cases are set out on pages 5 to 9 of the majority opinion. Some of these states hold that it is not necessary in a burglary indictment to specify the defendant’s intended crime. Other states, with statutes similar to Aaska’s, do hold that the indictment should specify the intended crime. But even these states hold that the failure to specify the crime is merely a defect in the indictment, and the defendant must either object or show plain error in order to prevail.

¶6I therefore conclude that there is a possibility that we are misreading Adkins. The Adkins court may have concluded that Adkins might have been prejudiced by the failure to specify the underlying crime in the indictment, even though, in its opinion, the court did not discuss prejudice. In the event that Adkins actually did hold that a burglary indictment was fatally flawed unless it speci-*688fled the defendant’s intended crime, I conclude that the force of that decision is undermined by later supreme court cases such as Lupro and Thomas. I certainly recognize that, as a legal matter, my colleagues may be correct in concluding that we are required to follow Semancik’s interpretation of Adkins. If this is the case, I do not believe that Adkins would survive review by the Alaska Supreme Court. Perhaps my dissent will serve in some way to encourage this reexamination.