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THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY W. GLIDDEN, )
) Court of Appeals No. A-4055
Appellant, ) Trial Court No. 4FA-S90-
3415CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1261 - November 27, 1992]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Cynthia L. Herren, 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.
BRYNER, Chief Judge.
MANNHEIMER, Judge, concurring.
Gary W. Glidden was convicted by a jury of theft in the
second degree in violation of AS 11.46.130(a)(1). He appeals,
contending that Acting Superior Court Judge Jane F. Kauvar erred
in responding to the jury's request for clarification of the term
"deprive," as defined in AS 11.46.990(8). We reverse.
FACTS AND PROCEDURAL BACKGROUND
After living together for approximately two years, Gary
Glidden and Nina Brown separated. Several weeks later, Brown
discovered that a stereo receiver and compact disc player she had
recently purchased had been taken from her apartment. After a
short time, these items were found in the possession of David
Nelson, a friend of Glidden's. Nelson reported that Glidden had
given him the stereo equipment for safekeeping, while Glidden was
outside the state on a trip. According to Nelson, Glidden had
said that the equipment belonged to Brown and that Glidden
intended to give it back to her when he returned from his trip.
The state charged Glidden with second-degree theft for
taking the stereo equipment from Brown. "Theft" is defined in
AS 11.46.100:
A person commits theft if
(1) with intent to deprive another
of property or to appropriate property of
another to oneself or a third person, the
person obtains the property of another. . . .
With reference to this provision's requirement of an
"intent to deprive," AS 11.46.990(8)(A) states:
(8) "deprive" or "deprive another of
property" means to
(A) withhold property of another or
cause property of another to be withheld from
that person permanently or for so extended a
period or under such circumstances that the
major portion of its economic value or
benefit is lost to that person . . . .
At trial, Glidden defended against the theft charge by
asserting that he had not acted with intent to deprive Brown of
her stereo equipment. Relying on David Nelson's testimony that
Glidden intended to give the equipment back to Brown after
returning from his trip, Glidden argued that he never intended to
deprive Brown of her property permanently or for so extended a
period that the major portion of its economic value or benefit
would be lost to her. Glidden maintained that his intent to take
the equipment from Brown temporarily did not amount to theft.
In submitting Glidden's case to the jury, Judge Kauvar
gave instructions that included the statutory definition of
"deprive." During the course of its deliberations, however, the
jury wrote a note asking Judge Kauvar to clarify the meaning of
the statutory definition. The jury's note asked:
Does `benefit is lost to him' in the defini
tion of deprive . . . mean only the economic
benefit or is this a separate point of the
law stating that loss of the opportunity of
personal use is breaking the law too?
Judge Kauvar consulted with the parties as to an
appropriate response. Glidden argued that, as set out in the
statutory definition of "deprive," AS 11.46.990(8)(A), the phrase
"economic value or benefit," should be read to mean "economic
value" or "economic benefit," thus excluding the loss of any non-
economic benefit. Judge Kauvar concluded, however, that the word
"economic" modified only the word "value," and not the word
"benefit."1 Over Glidden's objection, the judge answered the
jury as follows:
The statute refers to loss of major portion
of its economic value or major portion of its
benefit. [Emphasis original].
After receiving this response, the jury returned a verdict
finding Glidden guilty of theft, as charged.
DISCUSSION
On appeal, Glidden challenges Judge Kauvar's reading of
the disputed statutory language. Glidden argues, as he did
below, that the word "economic" must be read to apply to both
"value" and "benefit." Glidden maintains that the court's error
in adopting a contrary interpretation of the statutory language
improperly allowed the jury to convict him of theft even though
he intended to take Brown's stereo equipment only temporarily.
The issue presented in this case is one of statutory
interpretation, as to which this court must exercise its
independent judgment on review. Conner v. State, 696 P.2d 680,
682 (Alaska App. 1985). In interpreting the disputed statute, we
must begin by considering the legislative intent leading to its
enactment. Wylie v. State, 797 P.2d 651, 657 (Alaska App. 1990).
The definition of "deprive" contained in AS 11.46.990-
(8)(A) was taken almost verbatim from section 11.46.990(3)(A) of
the Tentative Draft of Alaska's Revised Criminal Code. Alaska
Crim. Code Revision, Tentative Draft, Part 3 at 97-98 (1977).
The tentative draft's definition, in turn, was drawn from similar
definitions in the Oregon Revised Statutes and the Proposed
Michigan Revised Criminal Code. Id., Part 3, Appendix I at 104.
The commentary to section 11.46.990(3) of the tentative draft and
the commentary to AS 11.46.990(8) provide no insight into the
intended use of the word "economic" in those provisions.
Likewise, reference to the statutory and case law of Oregon and
Michigan provides no useful guidance.
Some guidance may be gleaned from the provisions of the
Model Penal Code, whose definition of "deprive" is similar to AS
11.46.990(8). Model Penal Code section 223.2, the code's basic
theft provision, requires that theft be committed with the
purpose to "deprive." The code defines "deprive" in section
223.0(1), which states:
(1) "deprive" means: (a) to withhold property
of another permanently or for so extended a
period as to appropriate a major portion of
its economic value, or with intent to restore
only upon payment of reward or other
compensation; or (b) to dispose of property
so as to make it unlikely that the owner will
recover it.
Model Penal Code section 223.0(1) (1985).
Although the Model Penal Code definition of "deprive"
refers only to the withholding of "a major portion of . . .
economic value," omitting reference to "benefit" or "economic
benefit," the commentary to the code makes it clear that the
code's drafters intended "economic value" to be construed
broadly, encompassing not only the intrinsic worth of a stolen
item, but also any benefit the owner of the item might gain from
its use -- a form of "economic value" that the commentary
characterizes as "beneficial use."
Thus, for example, in emphasizing that an intent to
appropriate property temporarily will not ordinarily qualify as
an intent to "deprive," the Model Penal Code commentary discusses
"economic value" in terms of beneficial use rather than intrinsic
worth:
Also covered [under the definition of
"deprive" in section 223.0(1)] is the case
where the actor intends to return the
property without exposing it to risk of loss
in the meantime but also intends to withhold
it "for so extended a period as to
appropriate a major portion of its economic
value." For example, a person would be
guilty of theft . . . if he surreptitiously
"borrows" his neighbor's lawn mower for the
summer, intending to return it in the fall
when it would no longer be needed or useful.
It would likewise be theft to take tires, a
battery, radioactive substances, or other
similar goods with a limited useful life,
even though the actor intended to return the
item taken after a prolonged use that
substantially dissipated its value to the
owner. On the other hand, unauthorized
borrowing or use of personal property is
excluded from the offense where the period is
not so extended as to appropriate a major
portion of its economic value or in cases
where the use or disposition of the property
does not make it unlikely that the owner will
recover its beneficial use. [Emphasis
added.]
Model Penal Code, section 223.2 commentary at 174-75 (1985).
It is significant that, though differing somewhat in
form, the Model Penal Code's definition of "deprive" has been
considered similar in substance to the definition of "deprive"
contained in AS 11.46.990(8)(A). See, e.g., Alaska Criminal Law
Manual, Derivation and Prior History Table at 6-20 (revised
1989). See also W.R. LaFave & A.W. Scott, Substantive Criminal
Law, section 8.5 at 357 & n.4 (1986)(listing AS 11.46.990 as a
provision following the Model Penal Code's approach in defining
"deprive"). The substantial similarity between Alaska's
definition of "deprive" and the definition incorporated in the
Model Penal Code strongly suggests that, when the drafters of
Alaska's definition substituted the phrasing "economic value or
benefit" for the Model Penal Code's "economic value," they
intended to clarify, rather than alter, the Model Penal Code's
definition. This conclusion finds support in the commentary to
the tentative draft of the Alaska Revised Criminal Code, which de
scribes the tentative draft's definition of "deprive," -- a
definition ultimately incorporated verbatim in AS 11.46.990(8) --
as being "[c]onsistent with existing law." Alaska Crim. Code
Revision, Tentative Draft, Part 3 at 20 (1977).
It thus seems fair to conclude that the word "benefit,"
as it appears in AS 11.46.990(8)(A), was meant to make explicit
what the Model Penal Code left implicit: that, for purposes of
the definition of "deprive," the "value" of stolen property
includes not only its intrinsic worth, but also the value of the
benefits it confers on its owner -- that is, the value of its
beneficial use. Our prior decisions also support this
conclusion. In Ace v. State, 672 P.2d 159, 162 n.1 (Alaska App.
1983), for example, we said:
[W]e believe that an intent to appropriate
[or deprive] . . . may be defined as an
intent on the part of the accused to . . .
cause permanent or virtually permanent loss
to any possible owner of the possession or
use of the property. [Emphasis added.]
This language from Ace was, in turn, based on the
commentary to the tentative draft of our theft statute, which
clarifies the intent of the statutory definition of "deprive:"
The thrust of the definitions of "deprive"
and "appropriate" is that they require a
purpose on the part of the defendant to exert
permanent or virtually permanent control over
the property, or to cause permanent or
virtually permanent loss to the owner of the
possession or use of the property.
Consistent with existing law, it is this
feature that distinguishes theft from other
offenses which, while similar to theft, are
satisfied by an intent to obtain only
temporary possession or use of property or to
cause temporary loss to the owner, (e.g., TD
AS 11.46.240, Unauthorized Use of Propelled
Vehicle).
Alaska Crim. Code Revision, Tentative Draft, Part 3 commentary at
20 (1977). [Emphasis added.]
Given the clarifying purpose of Alaska's statutory
reference to both "value" and "benefit," there seems no reason to
suppose that the modifier "economic" should not apply to both
words. Because the Model Penal Code's use of "value" encompasses
the dual concepts of intrinsic value and value of beneficial use,
both of which are governed by the modifier "economic" under the
code's formulation, both of these concepts, expressed separately
in Alaska's reference to "value or benefit," should logically
continue to be governed by the modifier "economic."
A common sense analysis of the structure of AS
11.46.990(8)(A) supports the same conclusion. Had the drafters
of the statute intended "economic" to modify only "value," and
not "benefit," they could readily have made their intent clear by
using phrasing such as "the major portion of its economic value
or its benefit," instead of "the major portion of its economic
value or benefit." Notably, the New York Court of Appeals,
interpreting a statutory definition of "deprive" that is
virtually identical to Alaska's, has indicated that the word
"economic" governs both "value" and "benefit." See People v.
Jennings, 504 N.E.2d 1079, 1087 (N.Y. 1986).
Read in this manner, AS 11.46.990(8)(A) means that a
person who appropriates property with intent to withhold it for
so extended a period as to result in a loss of "the major portion
of" its intrinsic worth intends to "deprive" the owner of its
"value," whereas a person who appropriates property with intent
to withhold it for so extended a period as to result in the loss
of "the major portion of" the worth of its beneficial use intends
to "deprive" the owner of its "benefit." In either event,
however, deprivation could occur only when the determination of
what constitutes "the major portion of" the property's intrinsic
worth or beneficial use is assessed in economic terms.
The most common way of expressing the intrinsic worth
of property in economic terms -- its "economic value" -- is by
calculating its fair market value. Other ways are certainly
possible. See, e.g., Willett v. State, 826 P.2d 1142 (Alaska
App. 1992). The economic worth of an item's beneficial use --
the "economic benefit" it confers on its owner -- can also be
expressed in various ways. Using the Model Penal Code's example
of a lawn mower that is temporarily taken from its owner,
economic benefit could be measured by the cost the mower's owner
would pay for mowing while deprived of the mower; or, if the
owner used the mower as a source of income, its economic benefit
could be expressed in terms of the owner's lost profits.
Using the present case as another example, the economic
value of the stereo equipment Glidden took from Brown could be
expressed as the price Brown had recently paid for it. The
economic benefit that Brown derived from using the equipment
might be quantified in a variety of ways: as the expense Brown
might have incurred in renting comparable equipment when she
wanted to listen to music; alternatively, had Brown obtained or
kept the equipment for business purposes, its economic benefit
could be stated in terms of lost revenues.
For present purposes, the crucial point is that, under
AS 11.46.990(8)(A), "value" and "benefit" must both be measured
in economic terms. Just as a temporary taking of property that
resulted only in the loss of sentimental value would not qualify
under the statutory definition of "deprive," so the definition
would not be met by a taking that resulted only in the loss of an
abstract beneficial use whose value was purely sentimental or
incapable of being quantified in economic terms.
Beyond this, however, Glidden has argued that the
statutory term "economic benefit" excludes all beneficial uses
that are not economic per se. This position seems unduly narrow.
It is self-evident that property can have "economic value" even
though its owner possesses it for reasons that are not per se
economic: the economic value of a house can be determined by
estimating its fair market value, regardless of whether the house
is actually for sale or whether its owner contemplates selling
it. Similarly, property that is capable of being used to
generate revenue or to avoid cost confers an "economic benefit"
on its owner, regardless of whether the owner was actually using
the property for monetary gain when it was taken. For purposes
of AS 11.46.990(8)(A), the "value" and "benefit" of property need
only be capable of being expressed and evaluated in economic
terms; neither the nature of the property nor its beneficial use
need be inherently economic.
We must also emphasize that, in order to determine if a
temporary taking of property would result in loss of "the major
portion of its economic . . . benefit" under AS 11.46.990(8)(A),
the beneficial use of the property must be evaluated in reference
to its expected life span. As our discussion above indicates,
Alaska's theft statutes are intended to apply in situations where
the accused acts with intent "to exert permanent or virtually
permanent control over . . . property, or to cause permanent or
virtually permanent loss to the owner of the possession or use of
the property." Alaska Crim. Code Revision, Tentative Draft, Part
3 at 20 (1977).
The definition of "deprive" set out in AS
11.46.990(8)(A) reflects this intent. Hence, a person who
temporarily dispossess an owner of property but returns it with
little or no diminution in its market value does not "deprive"
the owner of "the major portion of the economic value" of that
property. See, e.g., Jennings, 504 N.E.2d at 1087-88. This is
so even though the entire value of the property was unavailable
to its owner while the property was in the possession of the
person who took it. For the same reason, a person who
temporarily prevents an owner from using property but returns it
while the property retains most of its useful life does not
"deprive" the owner of "the major portion of the economic . . .
benefit" of the property, even though the owner may have been
entirely deprived of its use during its temporary unavailability.
Determining what constitutes "the major portion" of the
economic value or benefit of a given article of property requires
a case-by-case evaluation of the totality of the circumstances,
including the length of the intended taking, the nature of the
property taken, and property's normal useful life:
An intent to return property taken, in
order to qualify as a defense to larceny,
must be an intent to return within a
reasonable time. In determining what is a
reasonable time, much depends upon the nature
of the property and its expected useful life,
for to deprive the owner of the property for
so long a time that he has lost a "major
portion of its economic value" is to deprive
him for an unreasonable time. It is one
thing to take another's fresh strawberries
with intent to return them two weeks later,
another thing to take his diamond ring with a
like intention.
W.R. LaFave & A.W. Scott, Substantive Criminal Law, 8.5 at 361
(1986)(footnotes omitted). See also Model Penal Code 223.2,
commentary at 174-75 (1985).
With these principles in mind, we return to the circum
stances of Glidden's case. Glidden based his defense on the
premise that he intended only a temporary taking of Brown's
stereo equipment and thus did not act with the requisite intent
to "deprive" Brown of her property. Glidden relied on evidence
indicating that he planned to return Brown's property within
several weeks of taking it. In response to the jury's question
whether the phrase "economic value or benefit" in the statutory
definition of "deprive" meant only the loss of "economic
benefit," or whether it included "loss of the opportunity of
personal use," the trial court stated: "The statute refers to
loss of [the] major portion of its economic value or [the] major
portion of its benefit."
The trial court's response was legally incorrect. As
we have seen, the reference in AS 11.46.990(8)(A) to "economic
value or benefit" should properly be read to mean "economic
value" or "economic benefit."
We must separately consider whether this error was
harmless in the specific context of Glidden's case. The note
that the jury sent to the court attempted to differentiate
between loss of an "economic benefit" and "loss of the
opportunity of personal use." As our discussion in this opinion
demonstrates, loss of personal use -- or beneficial use -- may
properly be considered an "economic benefit," provided that the
use is not so abstract or conjectural as to defy evaluation in
economic terms. For this reason, if the exclusive effect of the
trial court's erroneous instruction was to allow the jury, in
applying the statutory definition of "deprive," to consider
Brown's loss of personal use of her stereo equipment as a
"benefit," we would be inclined to say that the error was
harmless -- at least in the absence of some indication that the
"personal use" the jury contemplated was a purely sentimental or
otherwise unquantifiable use.
Our review of the record nevertheless convinces us that
the potential effect of the court's error was not limited in this
manner. During his final argument to the jury, Glidden's counsel
advanced the claim that Glidden's intent to take Brown's stereo
equipment temporarily did not amount to the requisite intent to
deprive. In the closing portion of the state's final argument to
the jury, the prosecutor responded to Glidden's argument by
suggesting that, under applicable law, Glidden acted with intent
to deprive even if his only purpose was to prevent Brown from
using the stereo equipment for the short time that it was in his
control. Specifically, the prosecutor told the jury that
Glidden's defense would be arguable only:
[i]f you believe for the slightest that the
defendant had no intent to deprive her of the
property, such that she was inconvenienced.
Sure, she was inconvenienced. She didn't
have it for the better part of a couple of
weeks. So his intent was. I submit to you,
under the law, that's enough. That's enough.
Remember, he appropriated the property of
Nina [Brown] to himself, for a little bit,
and then to [David] Nelson. It's all it
takes. It's right there. You can read the
definitions all you want.
This argument could readily be interpreted as a claim by the
state -- one that is legally untenable -- that any temporary but
total interference with Brown's use of her stereo equipment
necessarily amounted to a loss of "the major portion of its . . .
benefit" while it was unavailable to her. Under this theory,
Glidden acted with intent to deprive even if he only intended to
prevent Brown from using her stereo equipment for a short time.
In light of this argument, we believe it highly likely
that the jury's request for clarification of the meaning of
"benefit" may have reflected its underlying confusion as to
whether Brown's total loss of the beneficial use of her stereo
equipment would qualify as a loss of "the major portion of its
benefit," even though the loss was of short duration. This is
plainly the danger that Glidden's trial counsel foresaw and
attempted to call to the court's attention. In opposing the
trial court's decision to instruct the jury that the word
"economic" applied only to "value," defense counsel repeatedly
emphasized that, unless the court instructed the jury that
"benefit" was limited to "economic benefit," the jury might find
Glidden guilty even if it concluded that he acted only with
intent to prevent Brown from using her equipment temporarily.
Judge Kauvar attempted to address this danger by
emphasizing, in her response to the jury, that, under the
statutory definition of "deprive," "the major portion of" either
the economic value of the equipment or of its benefit would have
to be lost. This approach, however, does not resolve the
apparent problem. The jury's confusion was evidently not with
the need to find that Glidden intended Brown to lose "the major
portion of" the use of her equipment, but rather with the time
frame to be used in deciding what constituted "the major portion
of" the equipment's use.
If "the major portion of" the stereo equipment's
beneficial use were measured only by reference to the period when
Glidden exercised control over it, the jury would undoubtedly
have found that Glidden took the property with intent to cause
Brown to lose the major portion of its benefit during that time.
This would be true even if the jury believed that Glidden
intended to take the property for only a short time. The jury
would have been far less likely to make this same finding if it
understood that "the major portion of" the property's beneficial
use must be assessed over the entire period of its expected
useful life, not just the period of its unavailability to Brown.
This potential area of confusion, which Glidden's trial counsel
repeatedly pointed out to the trial court, was left unresolved by
the court's response to the jury.
Strictly speaking, this problem is only indirectly
related to the narrowly framed legal issue that Glidden has
raised on appeal: whether the word "economic" modifies the word
"benefit" in AS 11.46.990(8)(A). The trial court's error in
instructing the jury that the word "economic" did not modify the
word "benefit" would in all likelihood have been inconsequential
had the court's response to the jury's inquiry emphasized that
the issue of whether Glidden intended Brown to lose "the major
portion of" the beneficial use of her stereo equipment must be
decided in terms of the equipment's expected useful life, and not
just in terms of the period of its unavailability to Brown.
Nevertheless, as we have indicated, in arguing that the
disputed statute required proof of an "economic benefit,"
Glidden's trial counsel made abundantly clear to the court his
concern that the jury might convict him of theft for, in effect,
"joyriding" Brown's property. Under the specific circumstances
of this case, we believe that the potential for a verdict based
on a misunderstanding by the jury of applicable law would have
been substantially reduced had the trial court correctly
instructed that the statutory phrase "economic value or benefit"
meant economic value or economic benefit.
When a jury voices confusion that is not resolved by
previously given instructions, the trial court bears the ultimate
"responsibility to give the jury the required guidance by a lucid
statement of the relevant legal criteria. When a jury makes
explicit its difficulties, a trial judge should clear them away
with concrete accuracy." Des Jardins v. State, 551 P.2d 181, 190
(Alaska 1976)(quoting Bollenbach v. United States, 326 U.S. 607,
612-13 (1946)). Here, Glidden was entitled, at a minimum, to a
correct statement of the law. We are unable to say that the
trial court's erroneous instruction did not appreciably affect
the jury's verdict. Love v. State, 457 P.2d 622, 634 (Alaska
1969).
Accordingly, Glidden's conviction must be REVERSED.
MANNHEIMER, J., concurring.
I am writing, not to supplement Chief Judge Bryner's
careful analysis of AS 11.46.990(8)(A), but to summarize what,
to my mind, is the underlying flaw in Glidden's conviction.
The trial court instructed the jury that Glidden could
be found guilty of theft if he deprived Brown of the "benefit" of
owning the stereo, even if this benefit was not an "economic"
benefit. This was error; for theft to be committed, the owner
must suffer deprivation of an economic benefit of the property.
But this error, of itself, was harmless in Glidden's case,
because the only benefit being litigated was an economic benefit.
The government claimed that Glidden had deprived Brown
of the use of stereo equipment. As we recognize in our main
opinion, one of the "economic" benefits of owning or possessing
property is the ability to make use of the property (so long as
this use can be evaluated in monetary terms). The benefit of
using stereo equipment to play music for one's enjoyment is an
economic benefit. Though the trial court may have used erroneous
reasoning when formulating its answer to the jury, the substance
of the court's answer was correct: the jury was legally entitled
to treat Brown's ability to use the stereo equipment as a
"benefit" when deciding whether Glidden was guilty of theft.
The flaw in Glidden's conviction lies in the fact that
the jury instructions allowed the prosecutor to argue that
Glidden could be convicted of theft even if the jury accepted
Glidden's explanation that he had intended to deprive Brown of
the stereo equipment for only a few weeks. The prosecutor argued
that complete deprivation of the use of the stereo equipment,
even for a short period of time, constituted the loss of "the
major portion of its ... benefit" required for a theft
conviction.
This argument was wrong. As the Model Penal Code's
lawn mower example makes clear, the economic benefit of owning or
using property is evaluated over the useful life of the property.
Because the useful life of stereo equipment is several years, and
because there was no evidence that renting another stereo system
for a few weeks would have cost Brown nearly as much as buying a
new one, the loss of a few weeks' use of the stereo equipment did
not constitute a loss of the major portion of its benefit.
Given the prosecutor's closing argument and the failure
of the jury instructions to clarify the flaw in that argument,
there is a strong likelihood that the jury convicted Glidden of
theft even though they thought he had committed the equivalent of
joyriding. For this reason, Glidden's conviction must be
reversed.
_______________________________
1. Judge Kauvar stated, in relevant part:
Well, if benefit doesn't seem -- mean
something different than value, then it --
what's it in there for? Economic benefit
isn't really a word. Economic value, I
suppose, is a word. I don't know if economic
benefit is a -- necessarily a word. So that
if benefit isn't in there, because you can
deprive somebody of the benefit of their
property -- even if the value, ultimately,
doesn't go down -- then the word shouldn't be
in the statute. And it's not and benefit,
it's or benefit. [Emphasis added.]
