In this appeal, O'Dell seeks reversal of his conviction for malicious destruction of property, contending that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt.
The facts, viewed most favorably to the prosecution,
Kinsey drove Mungaray to work and then drove home to inform his mother, who owned the car, of the incident. Kinsey and his mother reported the accident to Officer Canady. He referred the license number to the hit and run department.
Officer Smith traced the license number to appellant O'Dell. O'Dell told Smith that he remembered sliding into a vehicle on 15th Avenue when his brakes locked. He fixed the date of the accident at March 20, although Smith noted that he might have been the first to mention the March 20 date when he informed O'Dell of the accident he was investigating. O'Dell stated further that there was no damage, so both drivers went on their ways. He then signed a written statement confirming his oral report to the officer.
Smith checked O'Dell's car and found scratches and marks on the front bumper, but he was unable to relate them to the particular accident. The truck's bumper was 23 inches from the ground. The damage to the Gremlin was also at 23 inches.
At trial, Mungaray positively identified O'Dell as the truck driver. Kinsey was not as certain. Carolee Kinsey, Rick's mother, testified that two months after the accident she called O'Dell. He acknowledged the incident and said he would pay for any damages.
O'Dell's defense was that he was at a "salmon feed" at the Party House, a local restaurant, between 3:30 and 7:00 p.m. on March 20. He offered the testimony of six persons to support his alibi. All six placed O'Dell at the restaurant that afternoon, stating that he left only once, for about five minutes between 6:00 and 6:30 p.m. to move his truck for another guest.
O'Dell testified that he made the statement to Smith, believing the officer was investigating another accident in which O'Dell had been involved one week earlier. He denied telling Mrs. Kinsey he would pay for the damage, but he acknowledged her call. O'Dell and his girlfriend, Molly Cuthbert, both testified that earlier on March 20, they had been harassed on the Seward Highway by two or three young people in a small reddish-brown sports car, but that there had been no accident. The defense
The district court, sitting without a jury, found O'Dell guilty on October 1, 1976. He was sentenced to 30 days in jail with 25 days suspended and a fine of $200. The superior court affirmed.
The test for the sufficiency of the evidence necessary to support a finding that guilt was proven beyond a reasonable doubt is whether
Beck v. State, 408 P.2d 996, 997 (Alaska 1965); DeSacia v. State, 469 P.2d 369, 371 (Alaska 1970). Because O'Dell presented an alibi defense, the outcome of the case hinged upon the trier of fact's determination of the credibility of all the witnesses testifying at the trial. The trial judge, as the trier of fact here, heard all the evidence and had the opportunity to observe the demeanor of the witnesses. Therefore, the trial judge, not the reviewing court, assesses the credibility of the evidence presented. His determination will not be upset without a cogent showing that the evidence could not justify his finding. Noble v. State, 552 P.2d 142, 144 (Alaska 1976); Beck, supra, 998.
Mungaray, Smith, and Mrs. Kinsey offered sufficient relevant evidence which, if believed, could lead a reasonable mind to conclude that O'Dell was guilty beyond a reasonable doubt. The trial judge expressly believed their testimonies. He stated that four factors convinced him of O'Dell's guilt beyond a reasonable doubt: Mungaray's positive identification; the license number traced to O'Dell; O'Dell's admission to Smith; and the admission to Mrs. Kinsey on the telephone. Moreover, he specifically disbelieved that O'Dell could have been confused about which accident Smith was investigating.
The fact that six other witnesses and O'Dell's own testimony placed O'Dell elsewhere at the time of the accident does not negate the trial court's finding. Thompson v. State, 444 P.2d 171, 174 (Alaska 1968). The judge considered that evidence. He reasoned that since the afternoon at the Party House shared by all of O'Dell's witnesses was a casual event, with drinking, and not much regard for time, it was very plausible that the accident occurred as described by the prosecution witnesses sometime between 5:30 and 7:00 p.m.
After reviewing the record, we hold that there was substantial evidence to support a finding by the district court judge that O'Dell was guilty beyond a reasonable doubt.
We now turn to the Rule 45 question.
On September 8, O'Dell moved for a dismissal of the charges against him asserting two Rule 45 violations. First, he contends that the 120 day period in which he must be tried under Rule 45 began to run when Kinsey reported the accident to the police on March 20 or when suspicion focused on him. Rule 45(c)(1) explicitly states that the computation of time commences on the date the complaint was served, i.e., May 5. O'Dell had no right to Rule 45 protection until he was arrested, initially arraigned or served with the complaint filed against him. Yarbor v. State, 546 P.2d 564, 567 (Alaska 1976); Nickels v. State, 545 P.2d 163, 165 (Alaska 1976).
The trial court found that O'Dell's non-opposition to the requested continuance was tantamount to consent, thereby waiving his Rule 45 rights for that period under 45(d)(2). O'Dell argues that since Rule 40 of the Alaska Rules of Criminal Procedure
The continuance granted on August 10 specifically reset the trial date. Therefore, there is no open ended waiver problem as in Cooksey v. State, 524 P.2d 1251, 1260 (Alaska 1974). It also satisfies the command of Peterkin that
One hundred and twenty days began to run on May 6, the day following service of the complaint on O'Dell. Nickels v. State, 545 P.2d 163 (Alaska 1976). Excluding August 10 through September 6 only 97 days had passed when O'Dell's trial took place on September 8. We conclude that there was no violation of Rule 45 in this case.
"Rule 40. Time.