NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
SCOTT AIKEN, )
)
Appellant, ) Court of Appeals No. A-3825
) Trial
Court No. 3AN-S90-3744CR
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1182 - December 13, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, John D. Mason, Judge.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Terry A.
Fikes, Assistant District Attorney, Edward E.
McNally, Acting District Attorney, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Scott Aiken was convicted in a bench trial of unlawful
evasion in the second degree, AS 11.56.350.1 He appeals,
contending that the evidence was insufficient to support the
conviction. We affirm.
The information filed against Aiken alleged that he
failed to return to the Glen Wood Center, a halfway house, after
leaving to take out the garbage.
Three witnesses testified at trial. Thomas Roberts, a
correctional officer for the state, testified that Aiken was
serving a nine-month sentence for three counts of driving while
intoxicated and two counts of driving with a suspended license at
the time of the offense.
Dennis Tweeten, security guard supervisor at the Glen
Wood Center, testified that Aiken did not appear for the 11:00
p.m. head count on May 8, 1990. Tweeten testified that he did
not issue a leave pass to Aiken or give him permission to leave
the premises, and he did not observe anyone else give Aiken
permission to do so. Tweeten also stated that inmates are
allowed to go outside the facility to empty the garbage or get a
newspaper.
Loy Bolt, a probation officer at the Sixth Avenue and C
Street Jail, testified that on May 8, 1990, Aiken came to the
downtown jail facility to discuss his Clitheroe Center furlough
which was scheduled for May 10, 1990.
At the conclusion of the evidence, defense counsel
argued that Aiken was entitled to an acquittal because the state
had not proved that he failed to return to the Glen Wood Center
after having been given permission to leave. Defense counsel
pointed out that there had been no testimony whatsoever that
Aiken had been given specific permission to leave the facility.
Defense counsel contended that the state had proved only that
Aiken escaped from the Glen Wood Center, i.e., that he left
without permission. His contention was essentially that the
state had shown that Aiken was guilty of escape in the fourth
degree, a class A misdemeanor and thus a more serious offense.2
Aiken argues that unlawful evasion was not a lesser-included
offense of escape in the fourth degree and that the state had
therefore not proven the unlawful evasion charge against him.
The court convicted Aiken of unlawful evasion in the
second degree, finding that the evidence established that he
committed either an escape or an unlawful evasion. The court
also noted that it would have been difficult for the state to
prove an escape in light of the evidence that inmates have
blanket permission to leave the Glen Wood Center to empty the
garbage or get a newspaper.
On appeal, Aiken again claims that he was entitled to
an acquittal because the state proved that he committed the
offense of escape in the fourth degree rather than unlawful
evasion in the second degree. We agree with Judge Mason that the
court could properly convict Aiken of unlawful evasion. Under
the evidence in this case, Aiken either committed the offense of
escape in the fourth degree if he left detention without any
permission to leave, or unlawful evasion if, after being given
temporary permission to leave, he then left detention and stayed
away beyond the scope of the temporary permission. A person who
commits escape in the fourth degree is guilty of a class A
misdemeanor, a more serious offense than unlawful evasion, a
class B misdemeanor. In essence, Aiken's claim is that the state
could not charge him with the lesser offense. Aiken argues that
escape in the fourth degree and unlawful evasion are mutually
exclusive offenses requiring the state to prove that he committed
one crime or the other. If he had no permission to leave, he
committed escape; if he had permission to leave temporarily but
absconded, he committed unlawful evasion. However, a corollary
of Aiken's argument would be that if the state could show that
Aiken unlawfully was away from official detention, but could not
prove beyond a reasonable doubt whether or not Aiken had
permission to leave for a temporary period of time, the state
could not convict Aiken of either offense. This is not a
sensible reading of the statutes and we are quite confident that
this is not what the legislature intended.
A close reading of the applicable statutory language
supports this conclusion. Under AS 11.56.350(a)(1), unlawful
evasion occurs when a "person fails to return to detention within
the time authorized following temporary leave. . . ." The clear
focus of this language is on the accused's status at the time of
the alleged failure to return, not the antecedent status that
existed when the accused first left official detention. Thus, to
meet its burden of proving the elements of the offense, the state
must establish not that the accused was at some prior time
temporarily authorized to leave official detention, but rather
that, at the time of the alleged failure to return, no temporary
leave was authorized.
It seems clear that Judge Mason was correct in
concluding that the state could charge Aiken with unlawful
evasion, the lesser offense, and essentially concede that Aiken
may have had temporary permission to leave. The state presented
evidence at trial which provided that whether Aiken had temporary
permission to leave detention or not, he exceeded the scope of
that permission and committed at least the offense of unlawful
evasion. We do not see any problem with allowing the state to
convict Aiken on that basis.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. AS 11.56.350 provides:
(a)A person commits the crime of unlawful
evasion in the second degree if, while
charged with or convicted of a misdemeanor,
(1)the person fails to return to
official detention within the time
authorized following temporary
leave granted for a specific
purpose or limited period,
including leave granted under AS
33.30.181; or
(2)while on furlough under AS
33.30.101 - AS 33.30.131 the person
fails to return to the place of
confinement or residence within the
time authorized by those having
direct supervision.
(b)Unlawful evasion in the second degree is a
class B misdemeanor.
2. AS 11.56.330 provides:
(a) One commits the crime of escape in the
fourth degree if, without lawful authority,
one removes oneself from official detention
for a misdemeanor.
(b) Escape in the fourth degree is a class A
misdemeanor.
