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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


PAMALEA JOYCE RAMSEY,
                                                      Court of Appeals No. A-11701
                            Appellant,               Trial Court No. 3AN-12-2725 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                  No. 2470 — August 28, 2015


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Gregory A. Miller, Judge.

              Appearances: Callie Patton Kim, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Donald Soderstrom, Assistant Attorney General, Office of
              Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, and Allard and Kossler,
              Judges.

              Judge ALLARD.


              Pamalea Joyce Ramsey was convicted by a jury of one count of second-
degree theft based on evidence that she stole a variety of items from her employer on
different days.1

   1
       See former AS 11.46.130(a)(1) (2012).
               At trial, Ramsey’s defense attorney asked the judge to instruct the jurors
that they had to unanimously agree on which of the alleged acts of theft Ramsey
committed. The prosecutor objected, and the trial judge declined to give the requested
instruction.
               On appeal, the State concedes that this was error. The State’s concession
of error is well-founded.2
               When the State presents evidence that a defendant committed multiple
different acts that could each support a criminal conviction, the court is required to
instruct the jury that they must be factually unanimous as to which act the defendant
committed.3 Even in cases where the defense fails to request a factual unanimity
instruction, the failure to give such an instruction is plain error requiring reversal unless
the State can show that the error was harmless beyond a reasonable doubt.4
               Here, the prosecutor presented evidence of multiple discrete acts of theft.5
A factual unanimity instruction was clearly required in this circumstance and was also
specifically requested by the defense counsel.
               The prosecution’s objection to the proposed factual unanimity instruction
and the court’s ruling against the instruction appear to be based on an incorrect
understanding of the law. As this Court explained in McDole v. State, theft is not a



   2
       See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
   3
       Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985); Anderson v. State, 289
P.3d 1, 4 (Alaska App. 2012); Castillo v. State, 821 P.2d 133, 137 (Alaska App. 1991).
   4
       See Moreno v. State, 341 P.3d 1134, 1138 (Alaska 2015).
   5
       See former AS 11.46.130(a)(1) (2012) (second-degree theft); former AS 11.46.140(a)­
(1) (2012) (third-degree theft). In 2014, the legislature increased the value element of
second-degree theft to $750 or more, and increased the value element of third-degree theft
to $250 or more. See ch. 83, §§ 4, 5, SLA 2014.

                                           –2–                                         2470

continuing offense; a theft is complete as soon as the thief appropriates the property of
another.6 Under AS 11.46.980(c), a defendant can be charged with, and convicted of,
a higher degree of theft based on the aggregate value of items taken at separate times
during “one course of conduct.” But McDole holds that this aggregation statute “does
not define [the offense of] theft,” and instead only defines “the degree of the theft that
may be charged with aggregation.”7
             In other words, even when (as in Ramsey’s case) the State charges a
defendant with a higher degree of theft based on a connected series of smaller-value
thefts, the jury’s verdict must still be based on the jurors’ unanimous agreement as to
which of the individual thefts the defendant committed.
             The judgment of the superior court is REVERSED.




   6
       McDole v. State, 121 P.3d 166, 169 (Alaska App. 2005).
   7
       Id.

                                          –3–                                       2470

