Bailey v. State

• Court: Court of Appeals of Alaska
• Decided: June 17, 2026
• Docket: A-14386
• Status: Unpublished

Opinion

2026 WL 1758000

Only the Westlaw citation is currently available.

NOTICE: UNPUBLISHED OPINION

NOTICE This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).

Court of Appeals of Alaska.

Maxwell E. BAILEY, Appellant,

v.

STATE of Alaska, Appellee.

Court of Appeals No. A-14386

June 17, 2026

Appeal from the Superior Court, First Judicial District, Sitka, Trevor Stephens, Judge. Trial Court No. 1SI-23-00105 CR

Attorneys and Law Firms

Anna Jay, Jay Law, LLC, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Stephen J. Cox, Acting Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Beach, Judges.

SUMMARY DISPOSITION

*1 Pursuant to a plea agreement, Maxwell E. Bailey pleaded guilty to first-degree criminal trespass and fourth-degree criminal mischief for entering a large building in Sitka and discharging fire extinguishers inside it.¹ The agreement required Bailey to pay restitution in an amount to be determined after sentencing.

After a contested restitution hearing, the superior court ordered Bailey to pay $36,450 in restitution — $25,830 for a cleaning company to remove the fire extinguisher residue, $620 for new fire extinguishers, and $10,000 for the owner of the building's contracting and equipment moving company to remove any items inside the affected rooms prior to the cleaning and replace them after the cleaning. Bailey now appeals only the $10,000 portion of the award that was based upon the cost of moving the items.

The restitution award was based primarily upon the testimony of the owner of the building. The owner testified that the 13,000 square feet affected by the residue included twenty to twenty-five rooms, which had furniture and other items that needed to be moved prior to the cleaning and then replaced afterwards. The owner tried to obtain a quote from a moving company for this service but received no response.

Because of this lack of response, the owner determined that he would have to use his own employees to move the items from the affected rooms. Based upon his experience running an equipment moving company and his familiarity with the building and its contents, he estimated it would take two people working together for forty hours (i.e., eighty person-hours) with the aid of a forklift to complete this job. The owner testified he planned to pay his employees $75 per hour — half of their usual hourly rate of $150 per hour — because that was the hourly rate the cleaning company quoted for their workers. He also testified that he usually charged clients $100 per hour for renting his company's forklift and that using the forklift for this job would displace paying jobs for the full forty hours it was used. The owner testified that this plan would “keep costs down as much as possible.” The State also introduced photographs showing some of the affected rooms to show the extent of the residue.

On cross-examination, Bailey primarily contested the size of the building. Bailey attempted to show that the building was smaller than the owner claimed it was to undercut the credibility of the owner and the reasonableness of his claimed damages. Bailey also pressed the owner on how many items needed to be moved, noting that the photographs did not show many items inside the rooms. In response, the owner conceded that “some of the rooms are empty” but that “other rooms are full.” In response to Bailey's questioning, the State introduced property records showing that the building was roughly 32,000 square feet, which was consistent with the owner's testimony. The State also introduced additional photographs of some of the affected rooms, which showed large pieces of furniture including desks and a pool table.

*2 The court found that the owner's testimony was credible and that roughly 13,000 square feet of the building was affected by the fire extinguisher residue. The court found that using the owner's company to move the items was reasonable because the owner attempted to hire the only other moving company in Sitka but did not receive a response from them. The court further found that moving the items was necessary to clean the building. Finally, the court found that the owner's plan and rates were reasonable and would not result in any profits to the owner, especially because he would be displacing paying jobs to undertake this task.

On appeal, Bailey raises two arguments. He first argues that the evidence was insufficient to support the owner's estimate that it would take two people working together for a total of eighty person-hours to move all the items out of the affected rooms and replace them after cleaning. Specifically, he construes the evidence as establishing only that there were “12 pieces of furniture, one pool table, and some trash” because those are the only items depicted in the photographs introduced at the hearing. And he further argues that without evidence of “how many rooms in the building contained furniture, how many pieces of furniture needed to be moved, [and] what kind of items were in the rooms not shown in the state's exhibits,” no reasonable person could credit the owner's estimate that it would take eighty person-hours to move the items.

But when reviewing a challenge to the sufficiency of the evidence to support a restitution award, we construe the evidence in the light most favorable to the award.² Viewed in that light, the photographs merely depict some of the items to be moved, not all of them. This is also consistent with the owner's testimony that while some of the rooms were “empty,” others were “full” of items that needed to be moved. And contrary to Bailey's claims, this testimony was not speculative or uncorroborated — it was supported by the owner's experience running an equipment moving company, his personal knowledge of the contents of his building, photographs showing multiple large items inside the affected rooms of that building, and county records establishing the size of the building. Given this information, the superior court's factual finding that it would take eighty person-hours to remove and then replace all items inside the approximately twenty-five affected rooms comprising 13,000 square feet of space was not clearly erroneous and awarding restitution for those hours was not error.³

Second, Bailey argues that there was insufficient evidence to establish that a forklift was necessary to move the items. In support of this argument, Bailey re-raises his claims there were only twelve pieces of furniture (which he argues is too few items to justify a forklift) and that the owner's testimony was too speculative because he did not provide sufficient details about how the contents of each room required a forklift.

Bailey's second argument again fails to construe the evidence in the light most favorable to the restitution award. The photographs show multiple large, heavy items (including a pool table) that would require a forklift or other substantial mechanical assistance to move. Additionally, the owner testified that a forklift was necessary for rooms that contained only small items because it would allow his employees to consolidate the smaller items on pallets, which could then be moved via forklift, minimizing costs. Given the owner's expertise running an equipment moving company, the large size of the building, and the photographs showing multiple large, heavy items that could not easily be moved by hand, the court's finding that a forklift was necessary was not clearly erroneous. And awarding restitution for the costs of the forklift was therefore not error.⁴

*3 The judgment of the superior court is AFFIRMED.

Footnotes

1

AS 11.46.320(a)(2) and AS 11.46.484(a)(1), respectively.

2

Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993) (requiring reviewing court to “construe the record in the light most favorable to the state and determine whether a reasonable fact-finder could conclude that the disputed amount of restitution was established by a preponderance of the evidence”).

3

Id. (applying clearly erroneous standard of review to trial judge's finding of fact during restitution hearing).

4

Bailey additionally argues that crediting the owner's testimony was unreasonable because he did not explain why he could not move the items with less powerful or less expensive machinery such as a dolly or a pallet jack and cart. But Bailey did not inquire in the superior court about why these options were unfeasible or introduce evidence showing they were valid, less expensive alternatives, and the owner's testimony was sufficient to support the court's finding. Cf. Noffsinger, 850 P.2d at 650 (upholding restitution award based solely upon victim's estimate of amount of missing gold from a sluice box because defendant “failed to object to [the victim's] testimony on the ground that it was speculative,” “failed to request that [the victim's] expertise be established with greater particularity,” and “[d]espite the opportunity for cross-examination ... failed to question [the victim] about the precise manner in which he calculated” his losses).

End of Document