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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM DUANE WESOLIC, ) Court of Appeals Nos. A-
3831/3927
) Trial Court Nos. 4FA-90-840
Cr
Appellant, ) and 3AN-90-1897 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. )
________________________________) [No. 1234 - July 17, 1992]
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for Appel
lant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
William Duane Wesolic was renting a room in a single-
family North Pole residence owned by Forest Wilson. The house
had four bedrooms; Wesolic rented one of these rooms, and the
rental agreement additionally gave him access to the kitchen and
the living room. However, Wilson reserved the other three
bedrooms and the garage to his own use; there were locks on these
rooms, and the house key that Wilson gave to Wesolic did not open
these locks.
In late March 1990, Wilson's work took him to Valdez.
Before he left, Wilson locked the three bedrooms and the garage.
While Wilson was gone, Wesolic broke into these locked rooms and
stole Wilson's property. This property included several firearms
- four rifles, a .41 magnum pistol, and a .22 caliber pistol.
Both pistols were in shoulder holsters and were loaded.
A Fairbanks grand jury indicted Wesolic for several
crimes, including first-degree burglary. Wesolic was indicted
for first-degree burglary under two theories: first, that he
committed burglary of a dwelling, AS 11.46.300(a)(1), and second,
that he committed burglary while armed with a firearm, AS 11.46.
300(a)(2)(A). Wesolic filed a pre-trial motion seeking dismissal
of the burglary charge. He admitted that he had broken into the
locked rooms in Wilson's house and had stolen Wilson's property.
However, Wesolic argued that his entry into these locked rooms
had not been "burglary", or at least had not been first-degree
burglary. Wesolic pointed out that, as a renter, he was legally
entitled to be inside Wilson's residence; he contended that
Wilson's act of locking up the bedrooms and the garage had not
transformed these rooms into separate "buildings" within the
meaning of AS 11.81.900(b)(3). With regard to the State's second
theory (burglary while armed with a firearm), Wesolic argued that
the statute was not intended to cover situations in which a
burglar steals a firearm during the course of the burglary.
Following oral argument, Superior Court Judge Mary E. Greene
denied Wesolic's motion.
Judge Greene held that a person who rents out a portion
of his or her residence can nevertheless reserve a right of
privacy in certain rooms of the house, that these rooms can
constitute separate "buildings" within the meaning of AS 11.81.
900(b)(3), and that, if they do, the renter commits burglary by
breaking into those rooms and stealing property from them. Judge
Greene recognized that the separateness of the locked rooms and
Wesolic's authority or lack of authority to enter those rooms
were ultimately factual questions; but since Wesolic was seeking
dismissal of the charge before trial, the facts had to be
construed in the light most favorable to the State. Judge Greene
also ruled that the first-degree burglary statute, AS
11.46.300(a)(2)(A), encompassed situations in which the burglar
becomes armed with a firearm through an act of theft inside the
building.
Following Judge Greene's ruling, Wesolic entered pleas
of no contest to first-degree burglary, second-degree theft, and
first-degree misconduct involving weapons (being a felon in
possession of a concealable firearm). Although the record
nowhere reflects this, Wesolic apparently reserved his right to
appeal Judge Greene's ruling on his motion to dismiss the
burglary charge. See Cooksey v. State, 524 P.2d 1251 (Alaska
1974).
Under AS 11.46.310(a), a person commits burglary when
he or she "enters or remains unlawfully in a building with intent
to commit a crime in the building." Wesolic concedes that he
entered the locked bedrooms and garage in order to steal Wilson's
property; thus, what remains to be decided under AS 11.46.310(a)
is whether Wesolic (1) unlawfully entered (2) a building when he
broke into those locked rooms.
Under AS 11.46.350(a)(1), a defendant unlawfully enters
property when he or she "enter[s] ... in or upon premises ...
when the premises ... [are] not open to the public and when the
defendant is not otherwise privileged to do so". Wesolic's
conduct falls within this definition. Wilson's residence was not
open to the public, and, viewing the evidence in the light most
favorable to the State, Wesolic was not privileged to enter the
locked bedrooms and garage (even though he was renting another
portion of the residence).
The question then becomes whether a locked bedroom or
garage can constitute a separate "building". Under AS 11.81.900
(b)(3), a "building", in addition to its usual meaning, "includes
any ... structure adapted for overnight accommodation of persons
or for carrying on business". The statute also specifies that
"when a building consists of separate units, including apartment
units, offices, or rented rooms, each unit is considered a
separate building". This court has twice addressed the problem
of identifying when a room or suite of rooms within a larger
structure constitutes a separate "building" for purposes of the
burglary statute.
In Arabie v. State, 699 P.2d 890 (Alaska App. 1985),
this court held that a defendant could not be convicted of
burglary for entering and stealing beer from the walk-in cooler
of a grocery, a commercial establishment otherwise open to the
public. Even though the cooler bore a sign indicating that entry
by the general public was not authorized, this court concluded
that the cooler was simply part of the grocery's operation, not
so distinct a unit as to qualify as a "building" under AS
11.81.900(b)(3).
On the other hand, in Pushruk v. State, 780 P.2d 1044
(Alaska App. 1989), this court held that a defendant could be
convicted of burglary for breaking into a restaurant located
inside a hotel. Although the hotel was open for business, the
restaurant was closed; the doors allowing access to the
restaurant from the hotel lobby were locked. This court
concluded that, construing the evidence in the light most
favorable to the State, the restaurant was a separate "building"
under AS 11.81.900(b)(3). The evidence showed that the
restaurant was both physically and functionally a discrete part
of the hotel's business: there was a clear physical demarcation
between the hotel lobby and the restaurant, and it was obvious
(from the locked doors) that the restaurant was closed to the
public. Pushruk, 780 P.2d at 1046.
Some additional insight is furnished by the commentary
to the definition of "building" found in the Alaska Criminal Code
Revision, Tentative Draft, Part 3, p. 52. In this commentary,
the drafters of the current criminal code stated:
The definition's reference to "separate
units" of a building is relevant to
intrusions in hotels, apartment houses,
offices with multiple tenants, ferries with
private cabins, and similar structures. The
result [of this definition] is that an
intrusion into a single unit constitutes an
entry into a building, which can be the basis
of a burglary or criminal trespass
prosecution.
Both the language of AS 11.81.900(b)(3) and this draft
commentary indicate that, had Wesolic been one of several
boarders in a private house, each boarder's private room would
constitute a "building" and Wesolic's unlawful entry into another
boarder's room would be burglary. This result is consistent with
the analysis this court used in Pushruk, and it is the result
reached in State v. Cochran, 463 A.2d 618 (Conn. 1983),
interpreting Connecticut General Statute 53a-100, a definition of
"building" almost identical to ours. We discern no reason to
alter this result when a boarder breaks into the private quarters
of the boarding house proprietor - or, as in this case, when the
sole renter breaks into the landlord's locked, private portion of
the house.
We therefore agree with Judge Greene that, viewing the
evidence in the light most favorable to the State, the locked
bedrooms and garage in Wilson's residence constituted a separate
building, and thus Wesolic's unlawful entry into these rooms was
a burglary. The final issue is whether Wesolic's burglary was of
the first or second degree.
The grand jury charged that Wesolic's burglary had been
of the first degree both because the burglarized building was a
dwelling, AS 11.46.300(a)(1), and because Wesolic had been armed
with a firearm during the course of the burglary (due to his
theft of firearms from the locked rooms), AS 11.46.300(a)(2)(A).
Either theory independently establishes the higher degree of
crime.
A "dwelling" is defined in AS 11.81.900(b)(17) as
"a building that is designed for use or is used as a person's
permanent or temporary home or place of lodging". Wesolic might
potentially have argued that, even if the locked rooms in
Wilson's house constituted a separate "building", they still were
not a "dwelling" as defined in this statute. However, Wesolic
never raised this argument in the superior court, either in his
written motion or during oral argument on that motion. Wesolic's
appellate brief likewise fails to identify or address this issue.
Moreover, viewing the particular facts of this case in the light
most favorable to the State, it is obvious that Wesolic
burglarized the portion of the house that constituted Wilson's
dwelling.
Further, we agree with Judge Greene that a burglar who
arms himself with a firearm stolen during the course of a
burglary thereby commits first-degree burglary under AS
11.46.300(a)(2)(A). This statute specifies that a burglary is of
the first degree when "in effecting entry or while in the
building or immediate flight from the building, the person is
armed with a firearm". From its disjunctive wording, this
statute clearly contemplates situations in which a burglar enters
unarmed and thereafter becomes armed. The risks of potential
violence and serious injury to building occupants, police,
bystanders, and even the burglar himself are as fully present
when the burglar steals a firearm from within the building as
when the burglar arrives already armed.
Wesolic argues that mere possession of a firearm does
not constitute being "armed"; rather, he asserts, a defendant
should not be considered "armed" with a firearm unless the State
proves both that the defendant possessed a firearm and that the
defendant intended to use the firearm in furtherance of the
crime. However, the legislative commentary to AS 11.46.300
declares that "there is no requirement that the defendant use the
firearm". 1978 Senate Journal, Supp. No. 47 (June 12), pp. 43-
44. This treatment of firearms contrasts with the legislature's
treatment of other dangerous weapons. Alaska Statute
11.46.300(a)(2)(C) states that, even though a burglar might
possess a dangerous weapon (other than a firearm), the burglary
becomes first-degree burglary only if the defendant "uses or
threatens to use a dangerous instrument".
Thus, it appears that the legislature intended a
burglar's simple possession of a firearm to elevate the crime to
burglary in the first degree, at least when that firearm is
accessible for use.1 Other courts have interpreted their similar
burglary statutes in this way. See State v. Faille, 766 P.2d 478
(Wash. App. 1988), and Meadows v. Commonwealth, 551 S.W.2d 253
(Ky. App. 1977).
Wesolic acknowledges this adverse legal authority, but
he asks us to reject it in favor of the result reached in State
v. Bedford, 715 P.2d 761 (Ariz. 1986). In Bedford, the defendant
had burglarized a house; among the stolen items found piled next
to the front door was a shotgun in a zippered case. Unlike
Alaska law, Arizona law normally classifies a residential
burglary as second-degree burglary. Id. However, Arizona law
specifies that a residential burglary becomes first-degree
burglary if the defendant is "armed with explosives, a deadly
weapon, or a dangerous instrument" in the course of the crime.
Arizona Revised Statute 13-1508(A).
The Arizona supreme court held that a burglar could
become "armed" with a weapon stolen during the burglary, but only
if the evidence showed the burglar's willingness or present
ability to use the firearm as a weapon. If the evidence
indicated that the burglar viewed the firearm as simply another
piece of loot, the crime remained second-degree burglary.
Bedford, 715 P.2d at 763.
The Arizona supreme court candidly explained that its
interpretation of the Arizona statute was shaped by the court's
fear that a contrary interpretation would render nearly every
burglary a first-degree burglary. As noted above, Arizona law
does not distinguish between a burglar's possession of a firearm
and a burglar's possession of a "dangerous instrument".
Moreover, Arizona law, mirroring Alaska law, defines "dangerous
instrument" quite broadly: "anything that under the
circumstances in which it is used ... is readily capable of
causing death or serious physical injury." Bedford, 715 P.2d at
763; compare AS 11.81.900(b)(11). Thus, if the phrase "armed
with" were interpreted to mean simply "possesses", then a
burglar's possession of any implement that could theoretically be
employed to inflict serious physical injury would lead to a
conviction for first-degree burglary. To avoid this result, the
Arizona supreme court chose to give a narrow interpretation to
the phrase "armed with". Id. at 763.
The problems facing the Arizona supreme court in
Bedford do not arise under Alaska law. First, Alaska law makes
all residential burglaries first-degree burglaries, whether or
not the perpetrator is armed. Second, for non-residential
burglaries, Alaska law clearly distinguishes between the presence
of firearms and the presence of dangerous instruments: a
burglar's possession of a firearm will convert the offense to
first-degree burglary, but a burglar's possession of a non-
firearm dangerous instrument will not affect the degree of the
crime unless the defendant uses or threatens to use the dangerous
instrument. We therefore conclude that the reasoning of Bedford
is inapplicable to Alaska's statute. We instead adopt the
interpretation suggested by the statutory language, the statutory
policy, the legislative commentary, and the decisions in Faille
and Meadows.
For these reasons, we affirm Wesolic's first-degree
burglary conviction. We now turn to Wesolic's sentence.
Wesolic pleaded no contest to first-degree burglary, a
class B felony, AS 11.46.300(b), to second-degree theft, a class
C felony, AS 11.46.130(b), and to first-degree misconduct
involving weapons, another class C felony, AS 11.61.200(f). In
addition to these present offenses, Wesolic had seven prior
convictions for forgery, theft, credit card fraud, and false
statement.
The superior court found that, for presumptive
sentencing purposes, Wesolic had committed at least three prior
felonies. Wesolic was therefore a third felony offender under
AS 12.55.185(9); moreover, aggravating factor AS 12.55.155(c)(15)
- more than two prior felonies - also applied. In addition,
Wesolic conceded aggravating factor (c)(20) - that he was on
felony probation when he committed the present crimes. Finally,
because of Wesolic's extensive history of criminal convictions
involving forgery, fraud, and theft, Judge Greene found that
Wesolic had a history of repeated instances of criminal conduct
similar in nature to the offenses for which he was being
sentenced - aggravating factor (c)(21).
At his sentencing, Wesolic argued that his burglary was
among the least serious conduct included within the definition of
burglary, mitigating factor AS 12.55.155(d)(9). Wesolic claimed
that, because he had been renting a room in the residence, his
burglary had not presented the more terrifying scenario of a
stranger breaking into a house from the outside. Wesolic also
argued that he had purposefully chosen a time when the owner of
the house was away, so that no one was terrorized by the
burglary.
Judge Greene agreed that Wesolic's act of breaking into
locked rooms within a house, when he was privileged to be in
other portions of the house, presented a less terrifying type of
crime than a burglary committed by a complete stranger. However,
she believed that Wesolic's crime was aggravated by the fact that
he had obtained and then abused the homeowner's trust. Weighing
these two factors together, Judge Greene concluded that Wesolic
had failed to prove that his burglary of Wilson's house was
substantially more mitigated than the more usual type of
burglary.
Wesolic challenges this ruling on appeal. He again
argues that a burglary is mitigated if the burglar waits until he
is sure that the occupants of the house are away. However, this
behavior does not distinguish Wesolic's burglary from the run-of-
the-mill offense: burglars often wait until a structure is
unoccupied so that they can more easily accomplish their planned
theft and so that they run a lesser risk of detection and arrest.
Wesolic also argues that his abuse of Wilson's trust was not a
proper factor to take into account when judging the seriousness
of the burglary. Wesolic suggests that this factor could
properly be employed to aggravate his theft conviction, but not
his burglary conviction. However, we agree with Judge Greene
that a renter's abuse of his landlord's trust is a proper factor
to take into account when judging the seriousness of the renter's
subsequent burglary. Because of his misplaced trust in Wesolic,
Forest Wilson left Wesolic alone in the house while Wilson
traveled to Valdez. This gave Wesolic the opportunity to break
into Wilson's rooms and steal his property at leisure, with far
more secrecy than a burglar normally enjoys when he or she must
break into a dwelling from the outside.
For these reasons, we conclude that Judge Greene's
rejection of Wesolic's proposed mitigating factor was not clearly
mistaken. Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
Finally, Wesolic challenges the total length of his
sentence. Judge Greene sentenced Wesolic not only for the three
felonies discussed above but also for three more felonies Wesolic
had committed in Anchorage: second-degree theft, second-degree
forgery, and first-degree misconduct involving weapons.
With regard to the Fairbanks cases, Judge Greene
sentenced Wesolic to a composite term of 8 years to serve. For
the first-degree burglary, Judge Greene imposed a sentence of 10
years' imprisonment with 2 years suspended. Judge Greene then
imposed concurrent sentences of 5 years with 1 suspended for the
second-degree theft and 3 years for the first-degree weapons
misconduct.
With regard to the Anchorage cases, Judge Greene
imposed a composite sentence of 5 years to serve. Judge Greene
sentenced Wesolic to concurrent 5-year terms of imprisonment for
his forgery and theft convictions, and she imposed another
concurrent 3-year term for the weapons misconduct conviction.
Judge Greene then declared that 3 years of Wesolic's
sentences in the Anchorage case would be consecutive to his
sentences in the Fairbanks case - making a total composite
sentence of 11 years to serve.
Wesolic argues on appeal that his sentence should not
have exceeded 10 years to serve. He relies upon this court's
decision in Neff v. State, 799 P.2d 782 (Alaska App. 1990). The
defendant in Neff had been convicted of various property
offenses, all classified as class C felonies; for these crimes,
Neff received a composite sentence of 13« years to serve. This
court reduced Neff's sentence, reiterating approval of the 10-
year benchmark advocated by the American Bar Association's
Standards for Criminal Justice (2nd ed. 1982), 18-2.1(e): "For
most offenses, the maximum prison term authorized ought not to
exceed ten years".
However, soon after Neff was decided, the Alaska
Supreme Court held that Standard 18-2.1(e) was not the law of
Alaska, and that when the ABA's 10-year rule tends to conflict
with the presumptive sentencing scheme established by the legisla
ture, the legislature's penalty ranges will control. State v.
Wentz, 805 P.2d 962, 966 n.5 (Alaska 1991). In contrast to the
defendant in Neff, Wesolic was convicted of a class B felony.
Because Wesolic was a third felony offender, he faced a
presumptive term of 6 years' imprisonment for this offense. AS
12.55.125(d)(2). Moreover, because the superior court found
three aggravating factors, the court was theoretically empowered
to sentence Wesolic to any term of imprisonment up to 10 years
for the burglary alone. AS 12.55.155(a)(2); AS 12.55.125(d).
Based on Wesolic's past record of criminal convictions
and the numerous criminal acts involved in this appeal, all
committed while Wesolic was on felony probation, Judge Greene
found that Wesolic was an offender who could not be deterred or
easily rehabilitated. She therefore chose to impose a sentence
that emphasized the Chaney criteria of community condemnation of
Wesolic's conduct and isolation of Wesolic to protect the public
from future harm. State v. Chaney, 477 P.2d 441 (Alaska 1970);
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). The record
supports Judge Greene's evaluation.
Judge Greene essentially found that Wesolic was a
dangerous criminal who could properly be classified as a worst
offender. See State v. Graybill, 695 P.2d 725, 730-31 (Alaska
1985), holding that an offender can be labeled "dangerous", and
thus deserving of an unusually severe sentence, based upon a
record of repeated violations of the law and failures to abide by
probation. While the maximum term for a defendant's single most
serious offense (here, 10 years) is an important sentencing
benchmark, Mutschler v. State, 560 P.2d 377 (Alaska 1977);
Clifton v. State, 758 P.2d 1279 (Alaska App. 1988); Karr v.
State, 660 P.2d 450 (Alaska App. 1983), rev'd on other grounds
686 P.2d 1192 (Alaska 1984), this benchmark can be exceeded when,
as here, the defendant is being sentenced for unrelated offenses.
Preston v. State, 583 P.2d 787 (Alaska 1978); Farmer v. State,
746 P.2d 1300, 1301-02 (Alaska App. 1987).
We find that Judge Greene's decision to sentence
Wesolic to serve 11 years in prison for the combination of his
Fairbanks and Anchorage crimes was not clearly mistaken. McClain
v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
_______________________________
1 We do not decide whether a burglary becomes burglary in
the first degree when the defendant steals a firearm that is not
readily usable or accessible - for instance, a disassembled
weapon in a sealed crate. We note, however, that the Alaska
Supreme Court interpreted our state's former felon-in-possession
statute to cover a felon's possession of firearms that were
unloaded, or were not fully assembled, or were in some other way
not immediately ready for use. Davis v. State, 499 P.2d 1025,
1038 (Alaska 1972), rev'd on other grounds, Davis v. Alaska, 415
U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
Here, it is undisputed that the rifles and pistols Wesolic
stole were readily available for his use.
