Notice: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROCKY N. SEAMAN, )
) Court of Appeals No. A-3956
Appellant, ) Trial Court No. 3KN-S88-1079CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1201 - February 7, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. W.H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Michalski, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Rocky N. Seaman was convicted, based upon his plea of
no contest, of custodial interference in the first degree, a
class C felony. AS 11.41.320. In entering his plea, Seaman
reserved his right to appeal Superior Court Judge Charles K.
Cranston's denial of his motion to dismiss. Seaman argued in the
trial court that the prosecution against him for custodial
interference in Alaska was barred by the double jeopardy
provision of the Alaska Constitution, Alaska Const. art. 1, 9,
and by AS 12.20.010 because Seaman had previously pled and been
sentenced for custodial interference in the State of Arizona.
Seaman appeals Judge Cranston's denial to this court. We affirm.
On December 15, 1987, the Anchorage Superior Court
awarded custody of Seaman's minor child, S.S., to the child's
mother. On January 27, 1989, a Kenai grand jury indicted Seaman
as follows:
That on or about [the] 2nd day of
August, 1988, at or near Kenai, in the Third
Judicial District, State of Alaska, Rocky N.
Seaman did knowingly, being the relative of a
child under 18 years of age, and knowing that
he had no right to do so, did keep S.S. from
his lawful custodian and did cause the child
to be removed from the state with the intent
to hold the child for a protracted period.
Seaman was arrested in Arizona on March 9, 1990. An Arizona
grand jury indicted Seaman with four counts of drug offenses,
three counts of forgery, and one count of custodial interference
as follows:
On or about March 9, 1990, while at 1274
West Pima, Lot 102, Pinetop/Lakeside,
Arizona, Rocky N. Seaman, knowing or having
reason to know that he had no legal right to
do so, kept 5 year old [S.S.], his son, who
was entrusted by the authority of law to the
custody of [the] natural mother, a class 6
felony, in violation of A.R.S. 13-1301 and
13-1302.
On May 29, 1990, Seaman entered into a plea agreement
on the Arizona indictment. As part of the plea agreement, Seaman
was convicted on the custodial interference charge. On May 31,
Seaman was assessed a fine and remained in jail until Alaskan
authorities arrived and transported Seaman to Alaska on June 7.
On August 10, 1990, Seaman moved to dismiss the
custodial interference charge of the Kenai indictment on
statutory and constitutional double jeopardy grounds. Seaman
argued that his plea to custodial interference in Arizona barred
prosecution for custodial interference in Alaska. The state
responded that the two custodial interference indictments alleged
separate and distinct charges. Judge Cranston denied Seaman's
motion to dismiss on September 25 and Seaman's motion for
reconsideration on October 23. Seaman pled no contest to
custodial interference on November 5, 1990, and now appeals the
denial of his motion to dismiss.
At oral argument in this case, Seaman's counsel
conceded that AS 12.20.010 provided broader protection from
prosecution by both Arizona and Alaska than did article 1,
section 9 of the Alaska Constitution. We believe that counsel's
concession is meritorious. Under the Alaska cases on article 1,
section 9, the state can prosecute for separate charges if it can
show that the defendant committed separate acts. See Whitton v.
State, 479 P.2d 302, 312 (Alaska 1970); Yearty v. State, 805 P.2d
987, 993-96 (Alaska App. 1991); Rodriquez v. State, 741 P.2d
1200, 1206-08 (Alaska App. 1987). Therefore Seaman's argument
turns on AS 12.20.010.
Seaman argues that the trial court erred in denying
his motion to dismiss because AS 12.20.010 barred prosecution for
custodial interference because Seaman had already pled to and
been sentenced for custodial interference in Arizona. This court
will determine matters of statutory interpretation without
deference to the trial court, adopting the rule of law most
persuasive in light of precedent, policy, and reason. Zsupnik v.
State, 789 P.2d 357, 359 (Alaska 1990). Ambiguities in criminal
statutes must be narrowly read and construed strictly against the
government. State v. Andrews, 707 P.2d 900, 907 (Alaska App.
1985), aff'd, 723 P.2d 85 (Alaska 1986).
Alaska Statute 12.20.010 provides as follows:
When an act charged as a crime is
within the jurisdiction of the United States,
another state, or a territory, as well as of
this state, a conviction or acquittal in the
former is a bar to the prosecution for it in
this state.
Clearly, Seaman cannot be prosecuted for "an act charged as a
crime" in Alaska if that "act" is also within the jurisdiction of
Arizona and Seaman has been convicted in Arizona. The crucial
issue in this case is whether Arizona convicted for the same
"act" that Seaman was prosecuted for in Alaska.2
When a defendant engages in a continuous criminal
episode it can be difficult for a court to properly separate the
conduct into separate criminal offenses. See Yearty, 805 P.2d at
995. However, in the instant case, it seems plain that the
Alaska custodial interference charge and the Arizona custodial
interference charge describe separate acts. The Alaska
conviction was for Seaman's act of taking S.S. from the state of
Alaska on or about August 2, 1988. The Arizona conviction was
for custodial interference on or about March 9, 1990, over one
and one-half years after Seaman removed S.S. from Alaska, and was
based upon Seaman's act of keeping his son from the lawful
custody of the son's natural mother. It seems clear to us that
the two charges encompass different acts and could support
different charges. We accordingly affirm Seaman's conviction.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
2. Alaska Statute 11.41.320 provides:
(a) A person commits the crime of
custodial interference in the first degree if
the person violates AS 11.41.330 and causes
the victim to be removed from the state.
(b) Custodial interference in the first
degree is a class C felony.
Alaska Statute 11.41.330 provides:
(a) A person commits the crime of
custodial interference in the second degree
if, being a relative of a child under 18
years of age or a relative of an incompetent
person and knowing that the person has no
legal right to do so, the person takes,
entices, or keeps that child or incompetent
person from a lawful custodian with intent to
hold the child or incompetent person for a
protracted period.
(b) Custodial interference in the
second degree is a class A misdemeanor.
Arizona Revised Statute 13-1302 provides in part:
A. A person commits custodial interfer-
ence or visitation interference if, knowing
or having reason to know that he has no legal
right to do so, such person knowingly takes,
entices or keeps from lawful custody or
specified visitation any child less than
eighteen years of age or incompetent,
entrusted by authority of law to the custody
of another person or institution.
. . . .
C. If committed by a parent or agent of
a parent of the person taken, custodial
interference is a class 6 felony unless the
person taken, enticed or kept from lawful
custody or visitation is returned voluntarily
by the defendant without physical injury
prior to arrest in which case it is a class 1
misdemeanor.
