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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL DE NARDO, )
) Court of Appeals No. A-3710
Appellant, ) Trial Court No. 3AN-S90-2991
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1170 - October 25, 1991]
Appellee. )
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Glen C. Anderson,
Judge.
Appearances: Daniel De Nardo, pro se, Anchor
age, for Appellant. Leroy K. Latta, Jr.,
Assistant District Attorney, Mary Anne Henry,
Acting District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Daniel De Nardo was convicted, following trial in the
district court at Anchorage, of third-degree weapons misconduct
(carrying a concealed weapon), AS 11.61.220(a)(1). He appeals
his conviction, contending that his conduct did not violate this
statute or, alternatively, that the statute is unconstitutionally
vague. We affirm.
Alaska State Trooper George Blickenstaff encountered
De Nardo in the Anchorage courthouse and arrested him for
outstanding traffic warrants. Blickenstaff asked De Nardo to
accompany him and Trooper Simon Brown to the trooper office in
the courthouse. As they approached the trooper office,
Blickenstaff saw De Nardo put his left hand into the left side of
his jacket. When De Nardo brought his hand out of the jacket, he
was holding a long-bladed knife.
Blickenstaff started towards De Nardo. As he did so,
Blickenstaff saw De Nardo put the knife into a briefcase he was
carrying. Either Blickenstaff or Brown grabbed the briefcase
from De Nardo, and the three men proceeded into the trooper
office. In the office, Blickenstaff and Brown opened the
briefcase and found the knife, which proved to be eleven inches
long.
Blickenstaff and Brown then took De Nardo to the
holding area, where they performed a pat-down search of De Nardo.
Blickenstaff found an empty knife sheath attached to De Nardo's
belt, hanging inside De Nardo's left pant leg. Blickenstaff
inserted the knife from the briefcase into the sheath and found
that the knife fit.
De Nardo was charged with violating AS 11.61.220(a)(1):
A person commits the crime of misconduct
involving weapons in the third degree if [he
or she] ... knowingly possesses a deadly
weapon, other than an ordinary pocket knife,
that is concealed on the person.
De Nardo elected to have a bench trial before District Court
Judge Glen C. Anderson.
At trial, De Nardo testified that his knife had been
inside his briefcase throughout the encounter with the troopers.
He added that the knife had been in a cardboard sheath in the
briefcase, not the sheath found inside his pant leg. De Nardo
also testified that the item Blickenstaff saw him put into his
briefcase was not the knife but rather an affidavit that De Nardo
had just had notarized in the courthouse.
Judge Anderson found De Nardo guilty. While Judge
Anderson indicated that he found the troopers' version of events
to be more credible than De Nardo's, this was not the basis of
the judge's decision. Instead, Judge Anderson declared that even
if the facts had been as De Nardo claimed -- that is, even if the
knife had been in the briefcase the whole time -- De Nardo would
still be guilty of carrying a concealed weapon.
De Nardo argued that a knife carried in a briefcase is
not concealed "on the person" as required by AS 11.61.220(a)(1).
But Judge Anderson rejected this interpretation of the statute.
He stated:
If the knife were in the sheath and still
contained within the briefcase, I would still
find Mr. De Nardo guilty of the offense and
find that each of the elements was met. ...
Clearly it's concealed. The knife is very
easy to conceal inside the case. ... I would
hold, as a matter of law, that even if [the
knife] were concealed only inside the case
which Mr. De Nardo carried, that that is "on
his person" within the meaning of the
statute.
In making this ruling, Judge Anderson relied upon the
definition of "on the person" found in Black's Law Dictionary.
See Black's Law Dictionary, (5th ed. 1979), p. 983. According to
Black's, "on the person" encompasses items "in contact with [the
defendant's] person or ... carried in his clothing." Judge
Anderson concluded that, even crediting De Nardo's account, the
knife had been concealed in the briefcase that De Nardo was
carrying into the courthouse. Thus, because the briefcase was in
immediate contact with De Nardo's person, Judge Anderson ruled
that De Nardo had violated the statute.
De Nardo's knife was clearly "concealed" within the
meaning of AS 11.61.220(e):
For purposes of [AS 11.61.220], a deadly
weapon on a person is concealed if it is
covered or enclosed in any manner so that an
observer cannot determine that it is a weapon
without removing it from that which covers or
encloses it or without opening, lifting, or
removing that which covers or encloses it.
On appeal, however, De Nardo renews his claim that a deadly
weapon concealed in a briefcase is not "on the person" within the
meaning of AS 11.61.220(a)(1).
Case law from around the country supports the
proposition that a person who carries a deadly weapon in a purse,
a briefcase, or even a paper bag commits the offense of carrying
a concealed weapon. See, for example, People v. Foster, 178
N.E.2d 402, 404 (Ill. App. 1961) (handgun in a zippered athletic
bag); State v. Britt, 264 N.W.2d 670, 673 (Neb. 1978) (handgun in
a gymnasium bag); Bell v. State, 347 S.E.2d 725, 726 (Ga. App.
1986) (handgun in a zippered shaving kit carried in the
defendant's hand); Schaaf v. Commonwealth, 258 S.E.2d 574 (Va.
1979) (handgun in a purse); State v. Molins, 424 So.2d 29, 30
(Fla. App. 1982) (handgun in a zippered gun case within a
zippered canvas suitcase); Rogers v. State, 336 So.2d 1233, 1234
(Fla. App. 1976) (handgun in a briefcase); State v. Straub, 715
S.W.2d 21, 22 (Mo. App. 1986) (handgun in a paper bag); People v.
Williams, 305 N.E.2d 186, 187 (Ill. App. 1973) (sawed-off rifle
in a paper bag).1
De Nardo correctly points out that most concealed
weapons statutes from other states differ from AS 11.61.220(a)(1)
because they employ the phrase "about the person" rather than "on
the person". He notes that courts have traditionally interpreted
the word "about" more broadly than the word "on". See, for
example, Anchorage v. Lloyd, 679 P.2d 486, 487 (Alaska App.
1984). From this, De Nardo argues that the Alaska legislature's
formulation of the offense should be read as a rejection of the
majority view concerning weapons carried in purses, briefcases,
and other containers.
We conclude, however, that the phrase "on the person"
is broad enough, without the additional word "about", to
encompass weapons concealed either in clothing or in purses,
briefcases, or other hand-carried containers. We reach this
conclusion for several reasons.
As noted above, this construction of "on the person"
finds support in Black's Law Dictionary. More importantly, this
construction has been adopted by those few states that, like
Alaska, have a statute referring only to weapons concealed
"on" or "upon" the person. See People v. Pugach, 204 N.E.2d 176
(N.Y. 1964) (handgun carried in a briefcase), and People v. Dunn,
132 Cal.Rptr. 921 (Cal. Super. 1976) (handgun carried in a
suitcase).
A similarly broad definition of "person" is employed in
defining the crime of larceny "from the person". Such larceny
includes thefts of a purse or suitcase which has been set down
beside or in the immediate presence of its owner. R. Perkins &
R. Boyce, Criminal Law (3rd ed. 1982), pp. 341-43. A similarly
extensive definition of "person" is employed in defining the tort
of battery, which in general terms is "harmful or offensive
contact with another person". Prosser & Keeton on Torts (5th ed.
1984), 9, p. 39. Prosser explains that, for purposes of
battery, contact with the "person" of another includes contact
with:
any part of the body or to anything which is
attached to it and practically identified
with it. Thus, ... contact with the
plaintiff's clothing, or with a cane, a
paper, or any other object held in the
plaintiff's hand will be sufficient[.]
Prosser at 39-40.
The legislative history of AS 11.61.220 also supports
our construction of the phrase "on the person". Before the
enactment of the present criminal code, the governing statute was
former AS 11.55.010, which read: "It is unlawful for a person to
carry concealed about his person, in any manner, [enumerated
weapons]." In place of this law, the Criminal Code Revision
Subcommission proposed a statute that prohibited anyone from
carrying a deadly weapon either "concealed on his person" or
"concealed in any place about his person where the deadly weapon
is readily accessible for use". TD 11.71.120(a)(1), Alaska
Criminal Code Revision, Part 5 at 102-03 (Tent. Draft 1978).
The Subcommission Commentary states that the second
clause of the proposed statute, "in any place about his person
where the deadly weapon is readily accessible for use", was
intended "to insure that weapons concealed in areas such as under
the front seat of an automobile or in an unlocked glove
compartment would be prohibited by the section". Id. at 114. In
other words, the second clause of the statute was intended to
reach weapons that were not being carried "on" or "upon" the
person's body (as that phrase had been defined in case law prior
to 1978) but that were nevertheless within easy reach. In its
commentary, the Subcommission anticipated the decision in
Anchorage v. Lloyd, 679 P.2d at 487-88, where this court
interpreted similar language in a municipal ordinance to apply to
a firearm concealed beneath an automobile seat.
When the legislature adopted AS 11.61.220(a)(1), it
struck the proposed statute's second clause. In its commentary,
the legislature explicitly rejected the Subcommission's proposal
to prohibit the carrying of concealed weapons in vehicles: "A
weapon concealed in an automobile is not 'concealed on a
person'". Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 103, 1978 Senate Journal 1399. The
legislature provided no other pertinent commentary.
The legislature's explicit mention of weapons carried
in automobiles, combined with its failure to provide further
commentary on the meaning of "on the person", leads us to
conclude that the legislature, when they deleted the
Subcommission's phrase "about the person", intended only to
reject the Subcommission's proposal to prohibit concealed weapons
in automobiles. The legislature did not intend to make Alaska's
statute the most restrictive in the United States.2
The legislature's intention to have the phrase "on the
person" encompass purses, briefcases, backpacks, and other
containers carried in contact with the body is further elucidated
by the definition of "concealed" adopted in AS 11.61.220(e).
This definition is phrased in the most general terms; a weapon is
"concealed" if it is:
covered or enclosed in any manner so that an
observer cannot determine that it is a weapon
without removing it from that which covers or
encloses it or without opening, lifting, or
removing that which covers or encloses it.
These extremely general references -- "covered or enclosed in any
manner", removal of the weapon "from that which covers or
encloses it", and "opening, lifting or removing that which covers
or encloses" the weapon -- would seem unneeded and unnecessarily
oblique if the legislature were simply referring to weapons
concealed in the pockets or folds of a person's clothes. Thus,
the wording of AS 11.61.220(e) further bolsters our conclusion
that the legislature intended section 220(a)(1) to cover weapons
carried in a purse or briefcase.
Moreover, the policy underlying concealed weapons
statutes is to prevent the surprise use of deadly force by
prohibiting people from "having, readily available for use,
weapons of which others are unaware". Anchorage v. Lloyd, 679
P.2d at 487. In view of this policy, it makes little sense for
the legislature to prohibit people from carrying deadly weapons
concealed in the pockets of their vests or trousers but at the
same time allow the concealment of such weapons in purses,
briefcases, or other satchels that people commonly carry.
De Nardo points out that, when there is a question
regarding the construction of a criminal statute, the statute
must be construed in favor of the defendant and against the
government. But this rule of lenity or strict construction comes
into play only when, after employing normal methods of statutory
construction, the legislature's intent cannot be ascertained or
remains ambiguous. Dixson v. United States, 465 U.S. 482, 491,
104 S.Ct. 1172, 1177, 79 L.Ed.2d 458 (1984); State v. Stores,
Opinion No. 1148 at 12 (Alaska App., July 26, 1991). We have
concluded that the legislature's intent on this issue can be
ascertained.
For these reasons, we hold that De Nardo's act of
carrying a long-bladed knife in a briefcase constituted the
concealment of a dangerous weapon "on his person" in violation of
AS 11.61.220(a)(1).
De Nardo next argues that if AS 11.61.220(a)(1) is
construed to include the carrying of a dangerous weapon in a
briefcase, then the statute must be unconstitutionally vague
because reasonable people could reach differing interpretations
of the phrase "on the person". But the fact that people can, in
good faith, litigate the meaning of a statute does not
necessarily (or even usually) mean that the statute is so
indefinite as to be unconstitutional. The question is whether
the statute's meaning is unresolvably confused or ambiguous after
it has been subjected to legal analysis. If study of the
statute's wording, examination of its legislative history, and
reference to other relevant statutes and case law makes the
statute's meaning clear, then the statute is constitutional.
Larson v. State, 564 P.2d 365, 372 (Alaska 1977); Stock v. State,
526 P.2d 3, 8 n.12 (Alaska 1974); Linne v. State, 674 P.2d 1345,
1350 (Alaska App. 1983). See also Michael v. State, 767 P.2d
193, 199-200 (Alaska App. 1988) (rejecting the contention that a
statute must be unconstitutionally vague if it can be interpreted
to apply to a category of cases not litigated before).
While reasonable people might differ about the outer
boundaries of the phrase "on the person", the wording and history
of AS 11.61.220, in combination with the relevant case law, make
it clear that this phrase encompasses purses, briefcases, and
other hand-carried containers. Thus, the statute does not suffer
from unconstitutional vagueness as applied to the facts of
De Nardo's case. See Summers v. Anchorage, 589 P.2d 863, 868
(Alaska 1979); Michael, 767 P.2d at 199-200.
Finally, De Nardo asserts that, even if his conduct is
covered by AS 11.61.220(a)(1) and even if the statute is constitu
tional, he still should have been acquitted because he believed
in good faith that the statute did not apply to him; thus, he
claims, he did not "knowingly" violate this statute. But AS
11.81.620(a) declares that, unless the legislature has
specifically provided otherwise, neither "[k]nowledge ... as to
whether conduct constitutes an offense" nor "knowledge ... as to
the existence, meaning, or application of the provision of law
defining an offense" is an element of any crime.
The judgement of the district court is AFFIRMED.
_______________________________
1 For a compilation of cases, see the annotation, Offense
of Carrying Concealed Weapon as Affected by Manner of Carrying or
Place of Concealment, 43 A.L.R.2d 492 (1979). For another
general discussion of this point of law, see 79 Am.Jur.2d Weapons
and Firearms 11 (1975). The American Jurisprudence article
lists only two cases deviating from the general rule that a
person "carries a concealed weapon" when he or she carries the
weapon concealed in a purse, bag, briefcase, or other hand-
carried container: State v. Weston, 94 S.E. 871 (S.C. 1918), and
Sutherland v. Commonwealth, 65 S.E. 15 (Va. 1909). Both of these
cases are from the early years of this century, and one of
them -- Sutherland -- was overruled in Schaaf v. Commonwealth,
258 S.E.2d 574 (Va. 1979).
2 For instance, the legislature rejected the Subcommis
sion's suggestion in TD 11.71.120(c) that the statute should
allow the wearing of weapons in a holster, scabbard, or sheath so
long as the container was at least partially visible -- a
provision that would have overruled McKee v. State, 488 P.2d
1039, 1042, 1043 n.5 (Alaska 1971). The legislature deleted the
Subcommission's language, reaffirming the decision in McKee that
partially visible weapons may yet be "concealed" if they are
effectively hidden from ordinary observation.
