Ruling reversed in 1998 attempted burglary case

PALMER -- The Alaska Supreme Court recently struck down an appeals court ruling that reversed the conviction of a Palmer man for attempted burglary.

Wayne Semancik, 48, was convicted of first-degree attempted burglary, third-degree criminal mischief and seven counts of fourth-degree assault for attempting to break into his neighbor's house on July 10, 1998.

Semancik thought his missing dog, Soma, was inside the home of his neighbor, Harvel Young. He tried to force Harvel's door open, pounding on the doors and walls, shattering a window with a rock and threatening to "shoot anything that moves," according to court documents.

Before troopers arrived and arrested Semancik, he broke a small window near the door and punched through the screen, pushing his arm through the broken window.

Semancik appealed the attempted burglary conviction on the basis that a grand jury indictment on that charge did not specify what crime he intended to commit when he entered the house.

The Alaska Court of Appeals reversed Semancik's conviction and dismissed the indictment based on precedent set in a 1964 case, Adkins v. State. The precedent requires burglary indictments to specify the defendant's intended crime and also permits a defendant to challenge a burglary indictment for the first time on appeal.

In its Oct. 1 opinion, the Alaska Supreme Court continued to require the state to specify the intended crime in a burglary indictment, but concluded that any challenge of the indictment must be raised during the trial or it is waived. Failure to specify the intended crime, the court said, "is a defect of form rather than substance."

Semancik's indictment did not specify the target crime but alleged only that he intended to commit first-degree burglary and engaged in conduct that constituted a substantial step toward the commission of that crime. In Alaska, any charge of burglary must state what crime the defendant intended to commit after breaking in.

However, Semancik never challenged the indictment before or during the trial. Although the original indictment did not specify the intended crime, defense attorney Robert Herz said he and Semancik were under the impression that the intended offense behind the attempted burglary charge was assault.

But during jury instruction at the end of the trial the state objected, saying the intended crime could be anything.

During the trial, Herz argued that Semancik's intention in entering Young's house was only to retrieve his dog, not to commit any crime. Only after his conviction did Semancik challenge the original indictment as fatally flawed.

Although the rule established by Adkins v. State allows for a first-time challenge of the indictment on appeal, the Alaska Supreme Court ruled that any challenges to the indictment must be made before the trial.

According to the Alaska Supreme Court's written opinion, "It is simply against public policy to waste judicial resources by permitting defendants to knowingly refrain from challenging an indictment until after conviction."

The court's decision establishes a new rule: Burglary indictments in which the intended crime is not specified must be challenged before the trial, and failure to do so constitutes a waiver of objection.

This means Semancik's original conviction of first-degree attempted burglary is upheld by the Alaska Supreme Court.

Semancik is currently out on probation under the supervision of the Palmer adult probation office.

Contact John Davidson at john.davidson@frontiersman.com.