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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH A. CHAMPION, )
) Court of Appeals No. A-5412
Appellant, ) Trial Court No. 3AN-93-322 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1451 - December 29, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Daniel Lowery, Assistant
Public Defender, 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, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Joseph A. Champion appeals his convictions for first-
degree burglary, AS 11.46.300(a), and second-degree theft, AS 11.
46.130(a)(2), as well as the sentence he received for these
crimes. We affirm.
Facts of the Case
In the early morning of January 13, 1993, Champion was
looking for money to buy alcohol and drugs. Sometime between
1:00 and 1:30 a.m., he came to the residence of James Burton, a
friend and former employer. Burton had previously lent money to
Champion, and Champion hoped that Burton would lend him money
now. No one was home at the Burton residence when Champion first
arrived. However, as Champion waited for someone to answer the
door, Burton's son Daniel and his friend Richard Gunder arrived
at the house. Daniel lived with his father.
When Daniel told Champion that his father was not home,
Champion asked permission to come inside to use the telephone.
Daniel let Champion into the house. Daniel and his friend Gunder
went into Daniel's bedroom while Champion used the phone. Within
five minutes, Champion was done with the telephone; he let
himself out of the house.
After Champion left, Gunder noticed that a "Street
Sweeper" shotgun was missing from James Burton's gun cabinet.
Daniel examined the cabinet and confirmed that the shotgun was
missing. Because he was unsure whether his father had removed
the shotgun, Daniel took no action. However, he did note that
no other weapons were missing from the gun cabinet.
Because they expected the elder Burton to return home
sometime during the night, the boys left the front door unlocked
and went to sleep. Sometime between 7:00 a.m. and 7:30 a.m.,
Daniel Burton heard the sound of the front door closing. He got
out of bed to investigate, but he found no one in the house and
nothing out of the ordinary, so he went back to bed. About
fifteen minutes later, Daniel heard the sound of the front door
being opened; this time, it was his father returning home.
Daniel immediately told his father about Champion's
visit and the missing "Street Sweeper" shotgun. When Daniel took
the elder Burton to examine the gun cabinet, they found that two
other firearms were now missing: a Remington 7mm magnum rifle
with a scope, and a Browning .22 caliber rifle. James Burton
called the police and reported the weapons missing.
Anchorage Police Officer Gary Barfuss arrived at the
Burton house at about 9:00 a.m. to investigate. After Daniel
Burton described the events of that morning, Barfuss put out a
"locate" on Champion, his vehicle (a black, two-door Ford
Festiva), and the three firearms.
A little later, the police received a report from a man
named Robert Turner. Turner told the police that he had just
been visited by Champion. Champion was in possession of a
"Street Sweeper" shotgun; he had asked Turner to disassemble the
weapon for him. (Turner refused.) Turner also noticed two other
weapons wrapped in a blanket in the back of Champion's car.
Around 11:00 a.m., William Fowler, a pawnshop owner,
called the Anchorage Police Department to report seeing a "Street
Sweeper" shotgun in the back seat of a car occupied by two men
who had just pawned two other firearms. When the police
interviewed Fowler, they learned that Champion and a friend,
Stephen Coats, had come to the shop around 10:30 a.m.. Champion
had two rifles with him C a Remington 7mm magnum and a Browning
.22 caliber. Champion tried to pawn these rifles, but he was
refused because he lacked the necessary identification.
Thereupon, Champion's friend Coats agreed to pawn the weapons
using his own identification. The two rifles were accepted for
pawn, and Coats retained the pawn tickets (which were in his
name).
At about 11:30 a.m., Investigator James Steeby spotted
Champion's vehicle in the parking lot of an apartment building
near 36th and Wyoming. Investigator Steeby radioed for back-up
and maintained surveillance of the vehicle and its occupants.
When Champion started to drive his car out of the parking lot,
Steeby activated his siren and lights. However, Champion refused
to stop; he drove off, and a high-speed chase ensued. During
this chase, Champion and Coats threw the "Street Sweeper" out the
window and into the street.
The police caught Champion and Coats and arrested them.
Champion was indicted for burglary (for his second, unconsented-
to entry into the Burton residence around 7:00 a.m.), three
counts of second-degree theft (one count for each of the three
firearms), and failing to stop at the direction of a police
officer.
At trial, Champion conceded that he was guilty of
failing to stop. However, Champion contended that he was
innocent of burglary and theft. With regard to the theft
charges, Champion admitted that he took the three firearms from
the Burton residence, but argued that he lacked an intent to
permanently deprive Burton of the firearms. He claimed that he
had only borrowed the firearms so that he could get some ready
money by pawning them; Champion asserted that he intended to
redeem the weapons shortly and then return them to Burton. The
burglary charge involved Champion's second entry into the house,
when he took the two rifles. With regard to this charge,
Champion admitted that he had entered the Burton residence
without permission, but he argued that this trespassory entry was
not burglary because he had not intended to commit theft (that
is, he intended to take the two rifles, but only temporarily).
The jury convicted Champion on all counts.
I
The State Presented Sufficient Evidence to Support
Champion's Convictions for Theft and Burglary
At the close of the prosecution's evidence, Champion
asked the trial judge to grant him a judgement of acquittal. The
superior court denied this motion. Champion challenges this
ruling on appeal. Champion asserts that the government presented
insufficient evidence to establish that he acted with intent to
permanently deprive Burton of the firearms. Even assuming that
the government was obliged to prove Champion's intent to
permanently deprive Burton of this property (see the next section
of this opinion), we find the evidence sufficient to support this
element.
Champion's argument hinges on viewing the evidence in
the light most favorable to himself. We, however, are obliged to
view the evidence in the light most favorable to upholding the
jury's verdict. Simpson v. State, 877 P.2d 1319, 1320 (Alaska
App. 1994). Even if Champion's act of pawning the two rifles was
considered an ambiguous act (that is, an act that might be
consistent with Champion's asserted intent to retrieve and return
Burton's property), the jury could evaluate Champion's intent in
light of his other conduct. The fact that Champion took the
weapons surreptitiously at two different times, the fact that he
asked Turner to dismantle the shotgun, the fact that he fled from
the police, and the fact that he threw the shotgun into the road
when the police were chasing him, all support a finding that
Champion intended to permanently deprive Burton of the firearms.
We therefore uphold the superior court's denial of Champion's
motion for judgement of acquittal.
II
The Relationship Between Champion's Conceded Intent to
Pawn the Firearms, His Asserted Intent to Return a
Short Time Later and Redeem the Firearms, and Alaska's
Statutory Definitions of "Intent to Appropriate" and
"Intent to Deprive"
As explained above, Champion defended the charges of
burglary and theft by contending that, even though he took the
firearms from Burton's residence without permission, he intended
only to pawn the weapons and then redeem them and return them to
Burton within a short time. Champion argued that, because he did
not intend to permanently deprive Burton of his property, he was
not guilty of either theft or burglary (which required proof of
his intent to commit theft).
On appeal, Champion asserts that his trial jury
received faulty instruction on the element of "intent to
permanently deprive". The State responds by arguing that this
was not an element of the crime at all C that Champion's intent
to pawn the property was, itself, a sufficient culpable mental
state for the crime of theft, and that it was irrelevant whether
Champion intended to return the firearms to Burton.
For the reasons explained below, we agree with the
State's construction of the theft statute. When Champion took
the three firearms, intending to pawn them, he committed the
crime of theft. This is true even if he intended to quickly
redeem the rifles and return them to Burton.
A. The Intent to Pawn Another's Property and the
Culpable Mental States Required for Theft
A person commits the crime of theft when, "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". AS 11.46.100(1). In the present case,
Champion concedes that he "obtained" property belonging to
another.1 The question litigated at Champion's trial was whether
he acted with one of the two alternative culpable mental states
specified by the theft statute: an intent "to deprive another of
property" and/or an intent "to appropriate property of another to
oneself or a third person".
The legislature has provided definitions of both
"appropriate" and "deprive". Under AS 11.46.990(2),
"appropriate" means:
(A) exercise control over property of
another ... permanently or for so extended a
period or under such circumstances as to
acquire the major portion of [its] economic
value or benefit ... ; or
(B) dispose of the property of another
for the benefit of oneself or a third
person[.]
Thus, the definition of "appropriate" in AS 11.46.990(2) focuses
on the thief's intent to obtain benefit from the stolen property
(either for himself or for a third person). By contrast, the
definition of "deprive" in AS 11.46.990(8) focuses on the thief's
intent to perform acts that will cause the owner to suffer loss
or detriment. Under AS 11.46.990(8), "deprive" means:
(A) withhold property of another or
cause property of another to be withheld from
[its owner] for so extended a period or under
such circumstances that the major portion of
its economic value or benefit is lost to that
person; [or]
(B) dispose of the property in such a
manner or under such circumstances as to make
it unlikely that the owner will recover the
property; [or]
(C) retain the property of another with
intent to restore it ... only if [the owner]
pays a reward or other compensation for its
return; [or]
(D) sell, give, pledge, or otherwise
transfer any interest in the property of
another; or
(E) subject the property of another to
the claim of a person other than the owner.
Clearly, subsection (D) of this definition is the part
most pertinent to the prosecution against Champion. Champion
conceded that, when he took Burton's firearms, he intended to
pawn the weapons and thereby obtain money to purchase alcohol and
drugs. Champion's intent to pawn the firearms was an intent to
"pledge or otherwise transfer an[] interest in [Burton's]
property" C an intent that constitutes "intent to deprive" under
AS 11.46.990(8)(D).
Thus, Champion conceded that he took the firearms from
Burton's home without permission and that, when he did so, he
acted with "intent to deprive" as defined in AS 11.46.990(8)(D).
In fact, Champion further conceded that, with respect to the two
rifles, he later accomplished this intent (by pawning them).
It would seem that there was nothing left to be
litigated at Champion's trial. However, in a pre-trial
memorandum, Champion asserted that AS 11.46.990(8)(D) implicitly
required the government to prove not only that Champion acted
with an intent to pledge or transfer an interest in the firearms
but also that he concurrently intended to permanently deprive the
owner of the property. That is, Champion argued that even if he
took the firearms intending to pawn them, he still would not be
guilty of theft if he also intended to redeem the firearms from
pawn a short time later and return them to Burton. Over the
prosecutor's objection, Judge Rene Gonzalez decided to give the
jury the following instruction proposed by the defense:
One who takes another's property,
intending at the time he takes it to use it
temporarily and then return it
unconditionally, within a reasonable time --
and having a substantial ability to do so --
lacks the intent to deprive required for the
crime of theft. The act of pawning another's
property, standing alone, is not strictly
determinative of the issue of whether or not
the state has proven an intent to deprive.
It is merely one fact among others set forth
in the evidence that you should consider in
deciding the issue.
This instruction was numbered 53. The instruction just
before it, number 52, defined "deprive" in the language of AS 11.
46.990(8). Thus, Instruction 52 told the jury that "intent to
deprive" meant, among other things, an intent to "sell, give,
pledge, or otherwise transfer any interest in the property of
another". But the very next instruction, Instruction 53, told
the jury that an intent to sell, give, pledge, or otherwise
transfer an interest in the property was not sufficient to
support Champion's conviction for theft C that the government
needed to prove an additional (and undefined) "intent to
deprive".
On appeal, the State renews its objection to Champion's
(and the trial court's) construction of the statute. The State
argues that when a defendant acts with intent to pledge or
transfer an interest in the property of another, no additional
intent is needed. That is, the State asserts that it was
unnecessary to prove that Champion had an intent to permanently
deprive Burton of his property; rather, Champion's intent to pawn
the firearms was, by itself, the "intent to deprive" required to
prove the crime of theft (and thus the crime of burglary).
B. The Common Law Does Not Control this Question
When Judge Gonzalez ruled that Champion's intent to
pawn Burton's property was not the culpable mental state required
for theft, and that the State was required to establish
Champion's intent to permanently deprive Burton of the property,
he relied on the discussion of larceny in Wayne R. LaFave and
Austin W. Scott, Jr., Substantive Criminal Law (1986), ' 8.5(b),
Vol. 2, pp. 359-362. With particular respect to the act of
pawning another's property, LaFave & Scott declares:
One who takes another's property
intending at the time ... to use it
temporarily and then return it
unconditionally within a reasonable time C
and having a substantial ability to do so C
lacks the intent to steal required for
larceny.
. . . .
[Thus], an intent to pawn the property [of
another], accompanied by an intent later to
redeem the property and return it to its
owner, is a defense [to larceny so long as]
the taker's financial situation is such that
he has an ability to redeem it.
LaFave & Scott, Vol. 2, pp. 359, 361.
There is a problem, however, with using this passage as
a statement of Alaska law. LaFave & Scott's discussion of the
elements of larceny ('' 8.1 B 8.5) is an attempt to review and
summarize both the common-law crime of larceny and the various
statutory re-definitions of this crime enacted by American
legislatures. The text therefore contains broad statements of
law that do not necessarily apply to Alaska's particular
statutory definition of theft.
The fundamental question in Champion's case is to
determine whether his intent to pawn Burton's property was a
sufficient intent to "deprive" to support a theft conviction
under Alaska law. Because the crime of theft (like every other
crime in Alaska) is defined by statute, see AS 11.81.220; Olp v.
State, 738 P.2d 1117, 1118 (Alaska App. 1987), this question can
not be answered merely by ascertaining the elements of larceny as
that crime was defined at common law, nor merely by ascertaining
the majority rule found among the larceny and theft statutes
enacted by other states. This question can be answered only by
ascertaining (if possible) the intention of the Alaska
Legislature when it enacted the definition of "deprive" contained
in AS 11.46.990(8).
Both the common law and the law of other states may be
helpful in interpreting our legislature's intention. Moreover,
we apply the established rule of statutory construction that
larceny-type crimes are presumed to incorporate the element of
"intent to permanently deprive" unless there is clear indication
of a contrary legislative intention. See Hugo v. Fairbanks, 658
P.2d 155, 161 (Alaska App. 1983). However, it is ultimately our
legislature's intention that controls.2
C. The Origins of the Definition of "Deprive"
Contained in AS 11.46.990(8)
Alaska's definition of "deprive" is based on the Model
Penal Code, but it is not taken from the final version of that
Code. As defined in ' 223.0(1) of the final version of the Model
Penal Code, "to 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 [it] only
upon payment of reward or other compensation;
or
(b) to dispose of the property so as to
make it unlikely that the owner will recover
it.
American Law Institute, Model Penal Code and Commentaries (1980),
Part II, Vol. 2, p. 124. As can be seen, this definition
parallels three portions of Alaska's definition of "deprive":
subsections (A), (B), and (C) of AS 11.46.990(8). However, the
fourth and fifth portions of our statute, subsections (D) and
(E), are not found in the final version of the Model Penal Code.
Instead, subsections (D) and (E) come from the First and Second
Tentative Drafts of the Model Penal Code.
Under ' 206.1(1) of the First Tentative Draft, the
crime of theft was defined as "appropriat[ing] property of
another without his effective consent". The meaning of
"appropriate" was set forth in ' 206.1(2), and it was expressly
defined as including several types of temporary deprivations:
(a) Generally. Subject to paragraphs
(b) to (e), to appropriate means:
(i) to exert
unauthorized control over
property of another, other
than immoveable realty, with
the purpose of depriving the
owner thereof; or
(ii) to acquire title or
any other right in or with
respect to any property of
another.
. . . .
(c) Temporary Use. A purpose to
deprive of temporary use of moveable
property, or an acquisition of a right to
such use, shall suffice for an appropriation
if and only if:
(i) the use is to be so
prolonged as to constitute a
substantial portion of the
useful life of the property;
or
(ii) the property is to
be subjected to a risk of
permanent loss or substantial
injury so high as to manifest
an indifference as to whether
the property is restored
intact to its owner; or
(iii) the property is to
be sold, pledged, given away
or otherwise subjected to a
claim adverse or superior to
that of the owner, whether or
not the claim is legally
valid; or
(iv) the property is to
be restored to the owner by
selling or leasing it back to
him, or conditionally upon
payment of a reward, or by any
other transaction implying
that the actor is entitled to
retain control; or
(v) the actor's purpose
is to evade payment of a
charge ordinarily imposed for
the use of the property.
American Law Institute, Model Penal Code, Tentative Draft No. 1
(1953), pp. 51-52. The commentary to subsection (c) states that
the five categories of temporary takings listed here were
intended to make "some temporary deprivations [of property]
thefts, viz., those that involve a substantial risk of total loss
in some contingencies". Id., p. 71.
The First Tentative Draft states that a temporary
taking becomes theft "if and only if" the defendant's intent is
to do one of the types of things listed in the five
subparagraphs, (i)B(v). Thus, the act of taking someone else's
property temporarily (that is, with intent to restore it after a
reasonable time) would not, by itself, be sufficient to support a
charge of theft. Rather, it is the defendant's further intent to
subject the property to substantial risk of loss (by, for
example, pledging the property or doing some other act that
subjects the property to a third party's legal claim) that makes
the defendant's conduct theft.
The Model Penal Code's classification of certain types
of temporary takings as theft was carried forward to the Second
Tentative Draft. Section 206.6(1) of the Second Tentative Draft
stated:
Prolonged or Seriously Prejudicial
Deprivation. A person who secures or
exercises temporary control over movable
property of another without his consent ...
commits theft if:
(a) he deprives the owner
of it for a period so
prolonged as to constitute a
material impairment of the
total beneficial enjoyment of
the property; or
(b) he uses or abandons
the property in such a way as
to manifest an indifference as
to whether it will be restored
to the owner; or
(c) he sells, gives,
pledges or otherwise transfers
the property, or subjects it
to a claim adverse or superior
to that of the owner, whether
or not the claim is legally
valid; or
(d) he intends to restore
the property only on condition
that the owner pay a reward or
buy back [the property] or
make any other compensation.
American Law Institute, Model Penal Code, Tentative Draft No. 2
(1954), p. 87. Again, the accompanying commentary explicitly
states the Code's intention to impose "theft liability for all
these cases of substantial subversion of the owner's dominion
over his property". Id., p. 88.
But in the final version of the Code, the drafters
dropped the list of temporary takings that constituted theft. In
place of this list, the drafters substituted a new definition of
"deprive" C the definition now found in ' 223.0(1). To
reiterate, the Model Penal Code now defines "to deprive" as:
(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 [it] only
upon payment of reward or other compensation;
or
(b) to dispose of the property so as to
make it unlikely that the owner will recover
it.
In the commentary explaining this revised definition, the Model
Penal Code drafters stated:
The definition of "deprive" in
Subsection (1) is new. The utility of the
definition is that it provides a single
concept embracing both a permanent and
prolonged withholding of property from the
rightful owner. ... For want of such a
concept, it was necessary in earlier drafts
to provide separate sections dealing with
permanent deprivations and "prolonged or
seriously prejudicial deprivations." See
Tentative Draft No. 1, Section 206.1(2);
Tentative Draft No. 2, Sections 206.1(1) and
206.6(1).
American Law Institute, Model Penal Code, Proposed Official Draft
(1962), p. 163.
In other words, it appears that the drafters of the
Model Penal Code thought that the phrase "dispose of the property
so as to make it unlikely that the owner will recover it"
expressed the concept of the earlier drafts, but in a more
compact and elegant manner. This interpretation is reiterated in
the commentary that now accompanies the official draft of the
Model Penal Code:
6. Purpose to Deprive. ... The term
"deprive" is defined in Section 223.0(1) to
include permanent deprivations as well as
certain instances in which the actor does not
intend to deprive permanently or
unconditionally.
Although the common-law definition of
larceny was often formulated in terms of an
intent to deprive permanently, convictions
were sustained upon evidence that fell
considerably short of proving a purpose
totally and finally to deprive another of his
property. ... Where the intent to return
was contingent on payment of a reward or on
repurchase by the owner, the jury was
permitted to find an intent to deprive
permanently on the theory that the objective
was to deprive permanently if the owner
refused to pay the reward or other demand.
The fact that restoration to the owner is
contingent, as when the taker pledges the
property, has also been held to support
conviction for larceny. ...
Under the definition of "deprive" in
Section 223.0(1), a conviction for theft
would be possible in each of these
situations.
American Law Institute, Model Penal Code and Commentaries (1980),
Part II, Vol. 2, p. 174.
Evidently, the drafters of Alaska's revised criminal
code did not share the Model Penal Code drafters' view that the
new language was an adequate substitute for the old. Even though
Alaska's criminal code was written 15 years after the Model Penal
Code was finished, Alaska's drafters did not use the final Model
Penal Code definition of "deprive". Rather, the drafters of
Alaska's criminal code went back to the tentative drafts of the
Model Penal Code for the definition of "deprive" now codified in
AS 11.46.990(8). From this, we conclude that the drafters of
Alaska's criminal code made a conscious decision to adopt the
position of the Model Penal Code tentative drafts C a conscious
decision that these listed types of temporary takings should be
punished as theft.
Among the types of "prolonged or seriously prejudicial"
takings that the Model Penal Code classified as theft, one type
was any taking done with the purpose of "s[elling], pledg[ing],
giv[ing] away[,] or otherwise subject[ing] [the property] to a
claim adverse or superior to that of the owner". Model Penal
Code, Tentative Draft No. 1, ' 206.1(2)(c)(iii). The drafters of
the Alaska criminal code placed this provision in AS
11.46.990(8)(D)B(E):
"deprive" or "deprive another of property"
means to ...
(D) sell, give, pledge, or otherwise
transfer any interest in the property of
another; or
(E) subject the property of another to
the claim of a person other than the owner.
Based on the foregoing history, it appears that AS 11.46.
990(8)(D) was not intended to require proof of an intent to
permanently deprive the owner, but only to require proof of one
of the listed intents (to sell the property, or to give it away,
or to pledge it, or to otherwise transfer an interest in the
property).
D. The Comment to the Alaska Tentative Draft,
and Why We Reject It
Champion disputes the foregoing conclusion. He points
to the following portion of the Criminal Code Revision
Subcommission's commentary to the Tentative Draft's definition of
theft:
The definitions of "appropriate" and
"deprive", TD [] 11.46.990(1) and (3), are
used in determining the requisite intent on
the part of the defendant to commit theft.
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 some
other offenses which, while similar to theft,
are satisfied by an intent to obtain only
temporary possession or use of [the] property
or to cause temporary loss to the owner
(e.g., [joyriding]).
Alaska Criminal Code Revision, Tentative Draft, Part 3, p. 20.
Because the tentative draft definitions of
"appropriate" and "deprive" are essentially identical to the
definitions ultimately enacted by the legislature, this
commentary appears to be strong evidence that any theft under
Alaska law requires proof of the defendant's intent to
permanently deprive the owner (or, alternatively, the defendant's
intent to permanently appropriate the property). However, the
assertion in the commentary is simply not supported by the text
of the criminal code itself.
First, the structure of AS 11.46.990(8) does not
support the commentary. This statutory definition of "deprive"
is divided into five subsections. Only subsection (A) contains
an "intent to permanently deprive" clause:
"[D]eprive" or "deprive another of property"
means
(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[.]
The other subsections of the definition do not contain "intent to
permanently deprive" language:
(B) dispose of the property in such a
manner or under such circumstances as to make
it unlikely that the owner will recover the
property; [or]
(C) retain the property of another with
intent to restore it ... only if [the owner]
pays a reward or other compensation for its
return; [or]
(D) sell, give, pledge, or otherwise
transfer any interest in the property of
another; or
(E) subject the property of another to
the claim of a person other than the owner.
If the statute were meant to embody the idea stated in the
commentary, then one would expect to find the "permanently
deprive" language of subsection (A) ("withhold property ...
permanently or for so extended a period or under such
circumstances that the major portion of its economic value or
benefit is lost") in the introductory clause of the statute,
where it would modify all of the subsections, rather than
isolated in subsection (A).
The structure of AS 11.46.990(8) indicates just the
opposite of what the commentary asserts. Because the five
subsections of AS 11.46.990(8) are worded disjunctively (that is,
because they are separated by "or", not "and"), a plain reading
of the statute indicates that an "intent to deprive" will exist
when the defendant intends to accomplish any of the results
described in the five subsections of the statute.
Second, the assertion that the "intent to permanently
deprive" specified in subsection (A) applies to the other four
subsections of the statute is fundamentally illogical. If the
government proves that the defendant acted with the intent to
permanently deprive specified in subsection (A), this by itself
is sufficient to support the defendant's conviction of theft, and
there would be no need to prove that the defendant also acted
with one of the intents specified in the other four subsections
(such as the intent to sell or pawn the property).
In other words, if Champion and the commentary are
correct, then subsections (B) through (E) are superfluous. One
of the prime directives of statutory construction is to avoid
interpretations that render parts of a statute "inoperative or
superfluous, void or insignificant". 22,757 Square Feet, more or
less v. State, 799 P.2d 777, 779 (Alaska 1990).
E. Champion's Intent to Pawn the Weapons was a
Sufficient Culpable Mental State to Support
his Convictions for Theft and Burglary
Having examined the origins of AS 11.46.990(8), the
structure of that statute, and the logic of its provisions, we
reject Champion's contention that all thefts require the "intent
to permanently deprive" specified in AS 11.46.990(8)(A). Rather,
theft can be premised on proof of any of the culpable mental
states listed in the five subsections of AS 11.46.990(8). If
Champion took Burton's firearms with the intent of pawning them,
this was a sufficient culpable mental state to support Champion's
convictions for theft. We disapprove any suggestion to the
contrary in Ace v. State, 672 P.2d 159, 162 n.1 (Alaska App.
1983), and in Hugo v. Fairbanks, 658 P.2d 155, 160 (Alaska App.
1983). Similarly, if Champion broke into Burton's house to
accomplish this goal (pawning the weapons), this was a sufficient
culpable mental state to support Champion's conviction of
burglary.
F. The Defects in the Jury Instructions, the
Trial Judge's Response to the Jury's
Question, and the Definition of "Dispose of"
We now must return to Champion's original argument:
that the trial judge misinstructed the jury on the element of
"intent to permanently deprive". As just explained, we agree
that the jury instructions on this element were incorrect C but
the error ran in Champion's favor. Correct instructions would
have informed the jury that Champion could be convicted upon
proof that he intended to pawn the property, and without proof
that he intended to permanently deprive the owner.
The State argues that we should affirm Champion's
conviction because the error in the jury instructions unlawfully
benefited Champion. The issue is not that simple.
As described above, the jury was explicitly told in
Instruction 53 that Champion's intent to pawn the firearms was
not, by itself, a sufficient intent to "deprive" to support a
theft conviction. Because of this error, we can be fairly sure
that when the jurors voted to convict Champion of theft and
burglary, they did not rely on the construction of "intent to
deprive" which we have just explicated in this opinion (that an
intent to pawn someone else's property is, itself, an "intent to
deprive").
It appears that the jurors, trying to reconcile the
instructions dealing with the culpable mental state of "intent to
deprive", turned to the alternative culpable mental state that
can support a theft conviction, the intent to "appropriate". We
infer this because, during its deliberations, the jury asked a
question related to this culpable mental state.
Jury Instruction 51 defined the term "appropriate"
based on the wording of AS 11.46.990(2). This instruction
stated:
"Appropriate" or "appropriate property
of another to oneself or to a third person"
means to exercise control over property of
another ... permanently or for so extended a
period or under such circumstances as to
acquire the major portion of the economic
value or benefit of the property.
OR
"Appropriate" or "appropriate property
of another to oneself or to a third person"
means to dispose of the property of another
for the benefit of oneself or a third person.
The jury's question concerned the second part of this definition.
The jurors' note to Judge Gonzalez read, "We are needing a
definition of the term "disposal" as it relates to appropriation
[as defined in] Instruction 51."
When Judge Gonzalez asked the parties for suggestions
on how to answer the jury's question, Champion's attorney
proposed that the jury be told that "disposal" refers to an act
causing permanent or virtually permanent loss. The prosecutor
responded that Champion's suggestion confused "disposal" with the
culpable mental state that accompanies the act of disposal. She
argued:
PROSECUTOR: "[D]ispose of the property
of another" ... means to simply get rid of
it, which I think is the common usage C to
give it away to someone, sell it, pawn it, to
get money for it. It's simply to get rid of
it ... . I think the idea of permanent
deprivation is covered in the other jury
instructions.
Jury Instruction 51, like AS 11.46.990(2) itself, does
not use the term "disposal"; rather, both the instruction and the
statute use the phrase "dispose of". This phrase is not defined
in Title 11. However, the dictionary definitions of "dispose of"
are:
1) to deal with conclusively; settle
2) to give away or sell
3) to get rid of; throw away
Webster's New World Dictionary of American English (Third College
Edition, 1988), p. 396.
These definitions support the prosecutor's argument.
The gist of "dispose of" is the actor's termination of his or her
connection with the object (definitions 2 and 3), or the actor's
dealing with the matter or the object in a way that will
apparently require no further attention from the actor
(definition 1).
In the context of theft, a thief "disposes of" property
when the thief performs an act that either terminates the thief's
connection to the property or, alternatively, leaves the property
in a place or situation that apparently requires no further
attention from the thief. However, as the prosecutor noted, an
intent to "dispose of" the property is not sufficient, by itself,
to establish the crime of theft. An additional culpable mental
state must be proved.
AS 11.46.990(2)(B) states that an intent "to
appropriate" means an intent to
dispose of the property of another for the
benefit of oneself or a third person[.]
Thus, the government not only must prove that the defendant
obtained the property with an intent to "dispose of" it, but must
also prove that the defendant acted with the concomitant intent
to obtain benefit through this act of disposal (benefit either
for himself or for a third person).
When the defense attorney suggested that the jury be
told that "dispose of" refers to an act that causes permanent or
virtually permanent loss to the owner, the defense attorney
confused an intent to "appropriate" with an intent to "deprive".
Under AS 11.46.100(1), theft requires proof of either an intent
to appropriate or an intent to deprive. As we have already
discussed, the definition of "deprive" in AS 11.46.990(8) focuses
on the thief's intent to perform acts that will cause the owner
to suffer loss or detriment. In contrast, the definition of
"appropriate" in AS 11.46.990(2) focuses on the thief's intent to
obtain benefit from the stolen property (either for himself or
for a third person). Thus, as the language of AS 11.46.990(2)
itself declares, an intent to "dispose of" someone else's
property must be accompanied by an intent to obtain benefit, not
an intent to perform acts that will cause loss or detriment.
From the foregoing, it is apparent that even though
Champion's declared intent to redeem Burton's firearms from pawn
was not a defense to theft under an "intent to deprive" theory,
it was at least a colorable defense to theft under an "intent to
appropriate" theory. To prove "intent to appropriate", the
government would have to prove that Champion intended to "dispose
of" the firearms C that he intended to perform an act that would
either terminate his connection to the property or place the
property in a situation that (at least in Champion's
contemplation) would require no further attention from him. If
Champion intended to pawn the firearms and then simply walk away
with the money and terminate his connection with the property,
this would be an intent to "dispose of" the firearms. On the
other hand, if (as Champion asserted) he intended to return a
short time later and redeem Burton's firearms from pawn, Champion
could plausibly argue that he did not act with an intent to
"dispose of" the property.
We thus come full circle. The jury, in erroneous
Instruction 53, was told that Champion's intent to pawn the
firearms was not a sufficient "intent to deprive" to support a
theft conviction. The jurors therefore sought to analyze
Champion's case under an "intent to appropriate" theory. Under
this theory, Champion would have a colorable defense if he
intended to return shortly to the pawn shop, redeem the pawned
firearms, and expeditiously restore them to Burton.
That is, under an "intent to appropriate" theory,
Champion was entitled to raise essentially the same defense that
he would have been able to raise at common law: the defense that
his intent to pawn the property was ambiguous C that he would not
be guilty of theft if he intended only "to use [Burton's
property] temporarily and then return it unconditionally within a
reasonable time", so long as he had "a substantial ability" to
redeem the firearms from pawn. LaFave & Scott, Vol. 2, pp. 359,
361.
Judge Gonzalez answered the jury's inquiry by referring
the jurors to three lines from Instruction 52 (the instruction
defining "deprive"). The judge told the jurors, "[T]he concept
of disposal is already defined for you in Instruction No. 52. I
refer you to lines six, seven, and eight of Instruction 52."
These lines read:
["Deprive" or "deprive another of
property" means to] [d]ispose of the property
in such a manner or under such circumstances
as to make it unlikely that the owner will
recover the property.
As Champion points out on appeal, the sixth through
eighth lines of Instruction 52 do not (syntactically speaking)
define the phrase "dispose of"; rather, these three lines are
simply a place in the instructions where "dispose of" is used.3
However, just as a purported error in a jury instruction must be
evaluated in the context of the instructions as a whole, Baker v.
State, Opinion No. 1444 (Alaska App., October 20, 1995), slip
opinion at 27, we must analyze Champion's contention in light of
the complete exchange between the jurors and the court. Judge
Gonzalez explicitly told the jurors that these three lines of
Instruction 52 did define "the concept of disposal". We
therefore readily conclude that the jurors understood the court's
response to mean that, in order to find that Champion had acted
with an intent to "dispose of [Burton's] property for the benefit
of [himself] or a third person", the jurors were required to find
that Champion intended to deal with the property "in such a
manner or under such circumstances as to make it unlikely that
[Burton would] recover the property".
In the context of Champion's case, this instruction was
the equivalent of the common-law defense that Champion had argued
for all along. Champion conceded that he took Burton's firearms
with the intent to pawn them. Champion's defense, based on the
common law of larceny, was that he was not guilty of theft
because (1) he intended to quickly redeem the property and return
it to Burton, and (2) he had the financial ability to do this.
When Judge Gonzalez responded to the jurors' question, he
instructed them that an intent to "dispose of ... property"
required an intent to deal with the property "in such a manner or
under such circumstances as to make it unlikely that the owner
will recover the property". For the jurors to make this finding,
they would necessarily have to reject Champion's defense C his
assertion that he possessed both the intent and the financial
ability to quickly redeem the firearms and restore them to
Burton.
We therefore conclude that, even though the jury
instructions did not accurately reflect the law of theft, this
did not prejudice Champion's right to a fair trial. In fact,
because of the flaw in the jury instructions, Champion was able
to present a defense that he was not entitled to, and the jurors
were instructed that it was their duty to acquit Champion unless
they rejected this defense beyond a reasonable doubt. Thus, the
error benefited Champion.
III
Was Champion a Second-Felony Offender for Purposes of
Presumptive Sentencing?
In 1985, following a jury trial, Champion was convicted
of attempted first-degree robbery. Superior Court Judge James A.
Hanson gave Champion a suspended imposition of sentence (SIS),
see AS 12.55.085, and placed Champion on probation for five
years. A few months later, Judge Hanson found that Champion had
violated the terms of his probation; the judge revoked Champion's
SIS probation and sentenced Champion to 4 years' imprisonment
with 22 years suspended. This 22 years was suspended on
condition of Champion's successful completion of probation until
December 2, 1989.
Following his release from jail, Champion began his
felony probation. Because of additional violations, Champion's
probation was extended by several months. On June 15, 1990,
Superior Court Judge Mark A. Rowland signed an order discharging
Champion from probation. Apparently believing that Champion had
just successfully completed his original SIS probation, Judge
Rowland further directed that Champion's attempted robbery
conviction be set aside.
Three years later, in June 1993, following Champion's
conviction in the present case, the District Attorney's Office
returned to Judge Rowland and asked him to rescind his order
setting aside Champion's earlier felony conviction. The State
alerted Judge Rowland to the fact that Champion had not
successfully completed his SIS probation C rather, Champion's SIS
had been revoked, he had received a regular felony sentence which
included probation, and it was this felony probation that
Champion completed in June 1990.
Champion did not dispute the State's assertions of
fact. He argued, however, that the State's motion was untimely.
Champion also argued that, even if the State's motion was timely,
Judge Rowland lacked authority to correct his mistake now.
Despite Champion's procedural objections, Judge Rowland rescinded
his earlier order and reinstated Champion's attempted robbery
conviction.
Eleven months later, Champion appeared for sentencing
in the present case. He asked Superior Court Judge Rene Gonzalez
to treat him as a first-felony offender for presumptive
sentencing purposes C that is, to ignore Judge Rowland's order
reinstating the 1985 attempted robbery conviction. Judge
Gonzalez ruled that the set-aside had been erroneous, that Judge
Rowland had had no authority to set aside Champion's 1985
conviction, and that Judge Rowland had therefore properly
rescinded the set-aside order.
On appeal, Champion renews his argument that Judge
Rowland was powerless to modify the erroneous set-aside order,
and that therefore Judge Gonzalez was obliged to treat Champion
as a first-felony offender for presumptive sentencing purposes.
This issue is directly controlled by Richey v. State, 717 P.2d
407 (Alaska App. 1986).
Like Champion, the defendant in Richey sought to be
declared a first-felony offender for presumptive sentencing
purposes even though he had previously been convicted of a
felony. Like Champion, Richey had received an SIS for a prior
felony conviction; and, as in Champion's case, the superior court
later revoked Richey's probation and imposed a normal felony
sentence. Still later, again as in Champion's case, the superior
court mistakenly issued an order purporting to set aside Richey's
conviction. 717 P.2d at 410.
As Richey approached sentencing for his second felony,
he argued that the erroneous set-aside order controlled his
sentencing status C that the superior court was obliged to treat
him as a first-felony offender. This court rejected Richey's
argument:
We believe it apparent that Judge
Rowland's set-aside order did not affect the
status of Richey's 1977 forgery conviction.
The order must be deemed a nullity because
Judge Rowland had no authority to issue it.
... The plain language of [AS 12.55.085(d)
and (e)] authorizes the sentencing court to
set aside a conviction only when a defendant,
following a term of probation incidental to a
suspended imposition of sentence, has been
discharged from probation "without imposition
of sentence." The obvious intent of this
provision is to allow set-aside orders to be
entered only in cases where a sentence has
never formally been imposed against a
defendant. Here, ... Judge Rowland had
already rescinded Richey's suspended
imposition of sentence and had formally
imposed sentence. Richey was never
discharged from probation under
AS 12.55.085(d). [Thus,] Judge Rowland had
no authority to set aside his conviction
under AS 12.55.085(e).
Richey, 717 P.2d at 410-11.
Champion argues that Richey was wrongly decided. He
cites Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966), for the
proposition that "[a] collateral attack [on a judgement] may be
made only when the judgment is void". Champion contends that,
even though a set-aside order might be demonstrably erroneous, it
can never be "void" because judgements are "void" only when the
issuing court lacks either personal or subject matter
jurisdiction. Champion points out that the superior court has
general jurisdiction over criminal proceedings. See AS
22.10.020(a). Thus, Champion argues, even though Judge Rowland
mistakenly issued the set-aside order, he nevertheless had
jurisdiction to issue the order, and it is therefore not "void"
(although it might be "voidable").4
The rule that Champion relies on does not apply to the
facts of his case. First, it appears that the State filed a
direct attack, not a collateral attack, on Judge Rowland's set-
aside order.5 Second, and more ultimately more important, Judge
Rowland's set-aside order was "void" (as Holt v. Powell and the
1942 Restatement of Judgments used that term). Because the
judgement was void, it could be attacked either directly or
collaterally.
In Holt v. Powell, the supreme court stated:
A judgment is void where the state in which
the judgment was rendered had no jurisdiction
to subject the parties or the subject matter
[of the litigation] to its control, or where
the defendant was not given proper notice of
the action and [the] opportunity to be heard,
or where the judgment was not rendered by a
duly constituted court with competency to
render it, or where there was a failure to
comply with such [other] requirements as are
necessary for the valid exercise of power by
the court.
420 P.2d at 471 (footnotes omitted). As authority for this
passage, the court relied on section (b) of the commentary to
' 11 of the 1942 Restatement of Judgments. That commentary
explicitly relies on ' 8 of the 1942 Restatement:
Requirements for Exercise of Court's Power.
A judgment is void if there is a failure
to comply with such requirements as are
necessary for the exercise of power by the
court.
Section (a) of the comment to ' 8 explains this rule:
Even though [the court rendering the
judgment] has jurisdiction over the defendant
and the court has competency [i.e., subject
matter jurisdiction] to render such a
judgment, the judgment may nevertheless be
void because of a failure to comply with
requirements of the law of the State for the
valid exercise of power by the court. The
validity of the judgment depends upon whether
or not the requirements are jurisdictional.
In section (d) of the same comment, the Restatement refers to
case law holding that judgements issued on Sunday, judgements
issued while the court is on vacation, and judgements issued when
the court is not sitting at its normal place, are "void" (not
merely "voidable") and subject to collateral attack. (The
comment does note that the "present tendency" C as of 1942 C is
to be stricter about which judgements can be collaterally
attacked.)
Judge Rowland did not have any authority to set aside
Champion's attempted robbery conviction except to the extent
expressly authorized by the legislature. As the supreme court
held in Davenport v. State, 543 P.2d 1204, 1210-11 (Alaska 1975),
and as this court reiterated in T.M. v. State, 860 P.2d 1286
(Alaska App. 1993),
[T]he superior court has no inherent power to
retain jurisdiction over a criminal case and
modify its judgement based on later events.
Any power the superior court might have to
modify a criminal judgement must stem from a
statute or a rule.
T.M., 860 P.2d at 1288.
In AS 12.55.085(e), the legislature gave the superior
court the power to set aside a criminal conviction in one
specific circumstance: if the defendant originally received a
suspended imposition of sentence and if the defendant is later
discharged from his or her SIS probation "without imposition of
sentence". Because the superior court had already revoked
Champion's SIS probation and had imposed a normal felony sentence
on him, there was no jurisdictional basis for Judge Rowland's
order setting aside his conviction. Under these circumstances,
there was a "failure to comply with requirements of [state] law
... for the valid exercise of power by the court". Restatement
of Judgments (1942), section (a) of the comment to ' 8.
The order purporting to set aside Champion's 1985
conviction was "void" for purposes of the 1942 Restatement and
the rule stated in Holt v. Powell. This order could be attacked
either directly or collaterally. As this court stated in Richey,
such an order is a nullity. 717 P.2d at 411.
Although Judge Rowland expressly rescinded his earlier
set-aside order after he discovered that it had been entered in
error, no explicit rescission was necessary. The set-aside was
void from the beginning. Judge Rowland's rescission order did
not change the legal status of Champion's attempted robbery
conviction; rather, it declared that legal status.6 We therefore
uphold Judge Gonzalez's ruling that Champion was a second-felony
offender for presumptive sentencing purposes. This, however,
does not end the matter.
In his argument to Judge Gonzalez at the sentencing
hearing in the present case, Champion's attorney asserted that he
and Champion had acted in reasonable and detrimental reliance on
Champion's apparent status as a first-felony offender:
DEFENSE ATTORNEY: I ... have concerns
about the Court of Appeals, in the Richey
case, claiming that [an] action [such] as
Judge Rowland took is a "nullity", because
it's not a nullity. It happened. And,
indeed, as [set] forth in [my] affidavit ...
in this case, it was relied upon by the
parties in making some very serious and
important decisions C particularly, the plea
negotiation process, [when we were] trying to
ascertain whether Mr. Champion should accept
an offer from the State[.]
Champion's attorney did not elaborate further, and the affidavit
to which he refers is not contained in the record on appeal.
Thus, the facts that underlie the attorney's assertion are not
before this court. Because any claim to relief that Champion may
have necessarily depends on facts outside the present record,
such a claim is not properly presented in a direct appeal.
Compare Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984)
(claims based on ineffective assistance of counsel must be
pursued under Criminal Rule 35.1 for this same reason).
IV
Did Judge Gonzalez Err When He Rejected Champion's
Assertion that the Burglary of Burton's Residence was
Among the Least Serious Within the Definition of First-
Degree Burglary?
At sentencing, Champion argued that his burglary
offense was mitigated under AS 12.55.155(d)(9) C that his conduct
was among the least serious within the definition of first-degree
burglary. Champion asserted that the crime of burglary is
punished so severely because of the terror it instills, or can
instill, in the occupants of the building. Champion argued that,
because he was a friend of the Burton family and a frequent
visitor to their home, his surreptitious entry into the Burton
residence did not have much potential to instill terror in the
Burtons, and thus his burglary was among the least serious.
Judge Gonzalez rejected this proposed mitigator. On
appeal, we must uphold Judge Gonzalez's ruling unless we are
convinced that it is clearly erroneous. Lepley v. State, 807
P.2d 1095, 1099 n.1 (Alaska App. 1991).
As Judge Gonzalez noted, the fact that Champion was a
friend of the Burtons cut both ways. Assuming that it might be
less frightening for a homeowner to find that an intruder is a
known acquaintance instead of a stranger, the fact remains that a
"friend" who burglarizes a house violates the trust of the person
who let the "friend" frequent the house and become acquainted
with the location of the homeowner's valuables. See Wesolic v.
State, 837 P.2d 130, 135 (Alaska App. 1992). We also note that,
because Champion stole firearms from the Burton residence, his
crime would have been first-degree burglary under AS
11.46.300(a)(2)(A) even if the burglarized building had not been
a dwelling. Wesolic, 837 P.2d at 133-34.
Finally, we note that Alaska law classifies the
burglary of any dwelling, occupied or not, as first-degree
burglary. See AS 11.46.300(a)(1) and its legislative commentary,
1978 Senate Journal, Supp. No. 47 (June 12), pp. 43-44. The
classification of all residential burglaries as first-degree
burglaries indicates that the legislature placed emphasis on the
burglar's violation of the homeowner's expectations of privacy
and security.
For these reasons, we conclude that Judge Gonzalez
could properly reject Champion's proposed mitigator.
Conclusion
The judgement of the superior court is AFFIRMED.
_______________________________
1 Under AS 11.46.990(11), one "obtains" property (a) when one "bring[s] about a
transfer or a purported transfer of a legal interest in the property[,]
whether to the obtainer or another", or (b) when one "exert[s] control over
property of another".
2 For example, the courts of Arkansas, Georgia, and South Dakota have
interpreted their theft statutes as not requiring proof of an intent to
permanently deprive. Moore v. State, 773 S.W.2d 834, 836 (Ark. 1989);
Emmett v. State, 405 S.E.2d 707, 709 (Ga. App. 1991); State v. James, 164
N.W. 91, 93 (S.D. 1917).
3 We note that the alternative response suggested by Champion's trial attorney
contained the same syntactical defect. It, too, failed to define
"disposal" and instead concentrated on the culpable mental state that
should accompany the act of disposal.
4 In Holt v. Powell, the supreme court relied on ' 11 of the original
Restatement of Judgments (1942) for the rule that a judgement can be
collaterally attacked only if it is "void". The court relied on the
commentary to ' 11 (which recapitulates ' 8 of the Restatement) for its
definition of "void". 420 P.2d at 471, nn. 8-12. Fourteen years after
Holt v. Powell was decided, the American Law Institute promulgated the
Second Restatement of Judgments (1980). The Second Restatement
specifically renounces the classification of judgements into those that are
"void" and those that are merely "voidable". See section (c) of the Intro
ductory Note to Chapter 5, "Relief from a Judgment". Moreover, the Second
Restatement no longer draws a hard-and-fast line between direct and
collateral attacks on prior judgements (although collateral attacks are
still disfavored). See section (b) of the Introductory Note to Chapter 5,
and '' 78-80 of the Second Restatement.
While the Second Restatement gives reason to believe that the rule stated in
Holt v. Powell might be modified if the issue came up again, this opinion
is written using the rule in Holt, interpreting its meaning by referring to
the definitions used in the First Restatement.
5 As defined in Black's Law Dictionary (5th edition, 1979),
p. 237, a "collateral attack" is
[a]n attack on a judgment in any manner other
than [in an] action or proceeding[] whose
very purpose is to impeach or overturn the
judgment; or, stated affirmatively, a
collateral attack on a judgment is an attack
made ... in an action or proceeding that has
an independent purpose other than impeaching
or overturning the judgment.
See also Restatement of Judgments (1942), section (a) of the
comment to ' 11: "The [initiation] of proceedings in the action
in which a judgment is rendered to have the judgment vacated or
reversed or modified by appropriate proceedings[,] either in the
trial court or in an appellate court[,] is a direct attack on the
judgment."
6 For these same reasons, we reject Champion's argument
that the doctrine of res judicata barred Judge Rowland from re-
examining his set-aside order.
