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
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prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN AUSTIN, )
) Court of Appeals No. A-4463
Appellant, ) Trial Court No. 3KN-S91-805CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1376 - November 10, 1994]
)
Appeal from the Superior Court, Third
Judicial District, Kenai, Charles K.
Cranston, Judge.
Appearances: Margaret E. Moran,
Assistant Public Defender, Kenai, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
John Austin was convicted, following a jury trial, of
burglary in the second degree, a class C felony. AS 11.46.310.
Austin appeals his conviction to this court. We affirm.
On June 25, 1991, a police officer arrested John Austin
and James Overway after they broke into a freezer storage unit
located behind the Sunrise Bakery warehouse in Soldotna. At the
time of their arrest, Austin and Overway were fleeing from the
warehouse and freezer trailer to a car, which was parked nearby.
Austin was carrying several frozen loaves of bread and a bag of
hamburger buns; Overway was carrying a loaf of bread and a
crowbar. The freezer trailer which Austin and Overway
forcibly entered and from which they took the bread products is a
free-standing, self-enclosed metal structure approximately 12
feet wide, 16 to 18 feet long, and 8 to 9 feet tall. The freezer
unit has been fixed to a wood foundation since about 1971. One
locked door, upon which the word "ICE" is emblazoned, provides
the sole access to the trailer. The temperature in the freezer
is normally between five and fifteen degrees Fahrenheit.
A grand jury indicted Austin and Overway for burglary
in the second degree under AS 11.46.310. Alaska Statute
11.46.310(a) defines burglary in the second degree:
(a) A person commits the crime of
burglary in the second degree if the person
enters or remains unlawfully in a building
with intent to commit a crime in the
building.
Alaska Statute 11.81.900(b)(3) defines "building":
"[B]uilding," in addition to its usual
meaning, includes any propelled vehicle or
structure adapted for overnight accommodation
of persons or for carrying on business; when
a building consists of separate units,
including apartment units, offices, or rented
rooms, each unit is considered a separate
building[.]
Austin and Overway moved to dismiss the indictment
arguing that the freezer trailer was not a "building" under AS
11.81.900(b)(3). Superior Court Judge Charles K. Cranston denied
this motion. Austin contends on appeal that this ruling was
erroneous.
The statute declares that "building" is to be
interpreted according "to its usual meaning." One standard
source for determining the usual meaning of "building" is the
dictionary. Black's Law Dictionary 176 (6th ed. 1979) defines
"building" as a:
Structure designed for habitation,
shelter, storage, trade, manufacture,
religion, business, education, and the like.
A structure or edifice inclosing a space
within its walls, and usually, but not
necessarily, covered with a roof.
The freezer trailer described in this case appears to fit within
this definition.
Two Alaska cases deal with the meaning of the word
"building" under AS 11.81.900(b)(3). Arabie v. State, 699 P.2d
890 (Alaska App. 1985); Pushruk v. State, 780 P.2d 1044 (Alaska
App. 1989). However, both of these cases address whether a
structure that was located within another building constituted a
separate building and appear to be of little value in deciding
the instant case.
We have therefore turned to cases from other
jurisdictions which have statutes similar to Alaska's. See
Jeffrey F. Ghent, Annotation, What Is "Building" or "House"
Within Burglary or Breaking and Entering Statute, 68 A.L.R. 4th
425 (1989). The Alaska statute and related definitions are based
on those of Oregon. The case law of Oregon favors the
interpretation that the freezer trailer at issue in this case is
a "building." In State v. Essig, 571 P.2d 170 (Or. App. 1977),
the Court of Appeals of Oregon determined that a large "potato
shed" in which several trucks were parked was a "building" under
the Oregon burglary statute. Essig stands for the proposition
that "the ordinary meaning of the term 'building' does not
exclude stationary structures used for storage." State v.
Barker/Phelps, 739 P.2d 1045, 1046-47 (Or. App. 1987) (footnote
omitted) (separate storage units contained in commercial storage
facility were buildings, encompassed by the term "rooms" in the
statute).1
New York courts have held that mausoleums fall under
the statutory definition of "building." People v. Sevigny, 468
N.Y.S.2d 981 (Sup. Ct. 1983); People v. Fennell, 504 N.Y.S.2d 481
(App. Div. 1986). In its decision, the court in Sevigny
reasoned that:
To argue that an above ground structure,
with doors, windows, and roof, cannot be the
object of a burglary because it "stores" the
remains of the deceased whereas, for example,
a shed used for the storage of garden tools
is subject to such recognition under the law
is illogical and perhaps even immoral.
Sevigny, 468 N.Y.S.2d at 983.
The dictionary definition and cases from other
jurisdictions support Judge Cranston's conclusion that the
freezer trailer in question in this case fell within the
statutory definition of "building." We therefore conclude that
Judge Cranston did not err in refusing to dismiss the indictment.
Austin next contends that Judge Cranston erred in
refusing to grant his mistrial motion based on prosecutorial
misconduct. During arguments concerning jury instructions, the
prosecutor suggested that the court include a dictionary
definition of "building" in the instructions, in addition to the
statutory definition. Both Austin's and Overway's attorneys
opposed the use of a dictionary definition in the jury
instructions. Judge Cranston decided to not include a
dictionary definition in the instructions, reasoning that the
jury could ask the court for further clarifying instructions
about the usual meaning of the word "building," if it wanted.
The prosecutor informed the court that the dictionary meaning of
the word "building" was part of the state's closing. In
response, Judge Cranston stated that he expected both attorneys
to argue the meaning of the word "building" even though the
dictionary meaning would not be included in the jury
instructions.
During closing arguments, both defense attorneys
contended that the freezer was not a "building" under the
burglary statute. During his rebuttal argument, the prosecutor
used an overhead projector to display four dictionary definitions
of "building." As soon as the overhead was displayed, Austin
moved for a mistrial. During the time that the attorneys were
arguing before the bench, the dictionary definitions remained
illuminated for several minutes in plain view of the jury. Judge
Cranston denied the motion for a mistrial. Austin contends this
was error. We disagree.
The dictionary definition of the word "building" was
relevant to its "usual meaning." Although Judge Cranston had
declined to instruct the jury on the dictionary definition of the
word "building," he had not entered any order forbidding counsel
from arguing the issue. Austin has not contended that the
dictionary definitions which were displayed were misleading or
inaccurate. It therefore appears to us that Judge Cranston did
not err in denying Austin's mistrial motion.
The conviction is AFFIRMED.
_______________________________
1 Another Oregon case, State v. Scott, 590 P.2d 743 (Or.
App. 1979), held that a railway boxcar was not a building since
it fell under neither the ordinary meaning of "building" nor any
of the expanded definitions outlined by the statute.
