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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BENJAMIN EPPENGER, JR., )
) Court of Appeals No. A-6554
Appellant, ) Trial Court No. 3AN-S96-7373CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1609 - November 6, 1998]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Shelley K. Chaffin, Law Office of
Shelley K. Chaffin, Anchorage, for Appellant. John A. Scukanec,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
The question raised by this case is whether a defendant
can be convicted of vehicle theft in the first degree if he obtains
the vehicle with the oral permission of the owner. We conclude
that, although the wording of the statute would seem to support
such a conviction, the legislative history of the statute indicates
that the legislature did not intend this result.
Following a jury trial, Benjamin Eppenger, Jr., was
convicted of vehicle theft in the first degree, a class C felony.
The statute governing first-degree vehicle theft, AS
11.46.360(a)(1), provides in relevant part:
A person commits the crime of vehicle theft in
the first degree if, having no right to do so or any reasonable
ground to believe the person has such a right, the person drives,
tows away, or takes . . . the car . . . of another[.]
At trial, the defense theory of the case was that Knutsen, the
owner of the vehicle, had given Eppenger permission to use his car
for a few hours in exchange for what appeared to be cocaine. Two
witnesses testified to this effect, in support of Eppenger's
theory. The defense theorized that Knutsen reported his car was
stolen only after discovering that the substance given to him by
Eppenger was not cocaine.
Eppenger asked the court to instruct the jury that he
could not commit the offense of first-degree vehicle theft if the
jury found that Knutsen had given him permission to use the car.
The court rejected Eppenger's contention and instructed the jury
essentially using the language of the statute.
During deliberations, the jury sent a note to the court,
asking:
If a person is given verbal permission to use
a car and asked to return the vehicle within a certain time frame,
what is the elapsed time after the requested return that the
vehicle is considered stolen[?]
Over Eppenger's objection, the court gave the following
instruction:
The vehicle is considered stolen if the user
drives it at any time after he knows or, but
for his own recklessness, should know that his permission to use it
has expired, unless he is driving it for the purpose of returning
it to the person who gave him permission to use it.
The jury found Eppenger guilty of first-degree vehicle theft.
On appeal, Eppenger renews his contention that a
defendant who initially obtains a car with the oral permission of
the owner cannot be convicted of vehicle theft, even if he later
fails to return the vehicle. In support of his argument, Eppenger
points to AS 11.46.365(a)(2), the definition of vehicle theft in
the second degree, a class A misdemeanor. The statute provides in
part:
(a) A person commits the crime of vehicle
theft in the second degree if, having no right to do so or a
reasonable ground to believe the person has such a right,
(2) having custody of a propelled vehicle
under a written agreement with the owner of the vehicle that
includes an agreement to return the vehicle to the owner at a
specified time, the person knowingly retains or withholds
possession of the vehicle without the consent of the owner for so
long a period beyond the time specified as to render the retention
or possession of the vehicle an unreasonable deviation from the
agreement. [Fn. 1]
Eppenger argues that it does not make sense for the legislature to
provide that a person who obtains custody of a car under a written
agreement and then fails to return it would face conviction of a
misdemeanor offense but would face conviction of a felony offense
if he obtained the car under a verbal agreement.
When we interpret a statute we use our independent
judgment to determine the meaning of the statutory language. [Fn.
2] We construe the statute "to give effect to the legislature's
intent, with due regard for the meaning the statutory language
conveys to others." [Fn. 3] In Alaska,
[we do] not enforce the traditional "plain
meaning" rule of statutory construction (the rule that, if the
wording of a statute is "plain," then courts will look no further
to determine the legislature's intention). However, when the
wording of a statute is apparently clear, a litigant . . . who
argues for a different construction of the statute bears a heavy
burden of demonstrating that the legislature intended something
different from what the words would normally mean. [Fn. 4]
The plain language of AS 11.46.360(a) criminalizes driv-
ing a vehicle if the defendant has "no right to do so or any
reasonable ground to believe [that he] has such a right[.]" The
language of the statute appears to criminalize this conduct even if
the defendant originally obtained the vehicle with permission. Yet
we agree with Eppenger that it does not seem reasonable that the
legislature intended to treat this conduct as a felony when it
provided, in a related statute, that unreasonable retention of a
car under a written agreement would be punishable as a misdemeanor.
[Fn. 5] We have accordingly investigated the legislative history
of these statutes to determine the legislative intent.
In 1975, the legislature created the Alaska Code Revision
Commission. [Fn. 6] As part of the Code Revision Commission, the
legislature established a subcommission on criminal law. [Fn. 7]
The purpose of the subcommission was to prepare and recommend a
comprehensive criminal code draft for the State of Alaska. [Fn. 8]
The subcommission on criminal law prepared the Tentative Draft,
which was published in 1977 and 1978. The legislature modified the
Tentative Draft creating Alaska's current Criminal Code. [Fn. 9]
Various sections of the Criminal Code have since been amended by
the legislature. Tracking the history of AS 11.46.360 and the
amendments to the statute is helpful in determining what conduct
the legislature intended to criminalize when it enacted the
disputed statute.
Alaska Statute 11.46.360(a) (motor vehicle theft in the
first degree) and AS 11.41.365 (motor vehicle theft in the second
degree) were originally combined in the Tentative Draft as follows:
AS 11.46.240. UNAUTHORIZED USE OF A PROPELLED
VEHICLE.
(a) A person commits the crime of
unauthorized use of a propelled vehicle if
(1) knowing that he does not have the
consent of the owner, he takes, operates, exercises control over or
otherwise uses another's propelled vehicle;
. . .
(3) having custody of a propelled
vehicle under an agreement with the owner of the vehicle in which
he has agreed to return the vehicle to the owner at a specified
time, he knowingly retains or withholds possession of the vehicle
without the consent of the owner for so long a period beyond the
time specified as to render the retention or possession of the
vehicle an unreasonable deviation from the agreement. [Fn. 10]
The commentary to the Tentative Draft explained the provisions as
follows:
While subsection (1) covers the most
typical joyriding situations, subsection [(a) (3) reaches] conduct
involving excessive misuse or withholding of a vehicle by a person
who originally obtained possession of the vehicle legally. This
type of conduct is limited [as follows.] [AS 11.46.240(a)(3)] is
illustrated by a person who borrows a car in Anchorage for an
afternoon and drives it down the AlCan. In [such a] case, the
conduct must constitute an "unreasonable deviation" from the
agreement[.] [Fn. 11]
The Tentative Draft sec. 11.46.240(a)(3) did not distinguish
between a verbal or written agreement as a means to obtain the
vehicle.
However, when the legislature enacted this provision of the
Tentative Draft as AS 11.46.484, criminal mischief in the third
degree, a class A misdemeanor, it limited the crime to instances in
which the defendant obtained the vehicle via a written agreement:
(a) A person commits the crime of
criminal mischief in the third degree if, having no right to do so
or any reasonable ground to believe the person has such a right
. . .
(2) the person drives, tows away, or
takes the propelled vehicle of another;
(3) having custody of a propelled vehicle
under a written agreement with the owner of the vehicle that
includes an agreement to return the vehicle to the owner at a
specified time, the person knowingly retains or withholds
possession of the vehicle without the consent of the owner for so
long a period beyond the time specified as to render the retention
or possession of the vehicle an unreasonable deviation from the
agreement;
. . .
(Emphasis added.) This offense is now codified in AS
11.46.365(a)(2), but the language remains the same. That is, only
a written agreement is covered by the statute. It seems illogical
to us that the legislature would choose to address verbal
agreements under AS 11.46.484(2) but address written agreements
under AS 11.46.484(3). It seems to us that the legislature must
have determined that verbal agreements should not be covered by the
statute. The legislature possibly determined that verbal
agreements for the use of a vehicle were generally between friends
and that the terms of the agreements would be difficult to prove.
The legislature could have determined that these verbal agreements
were not as appropriate for treatment under the criminal law as
violations of written agreements, where the terms of the agreement
were easier to prove and the agreements generally took place in a
commercial setting.
In 1996, the legislature repealed former AS
11.46.484(a)(2) and former AS 11.46.484(a)(3), and recodified them
as AS 11.46.360 (vehicle theft in the first degree) and AS
11.46.365, (vehicle theft in the second degree), respectively. [Fn.
12] We believe that the legislative history of these statutes
reveals that the legislature did not intend for AS 11.46.484(a)(2)
to criminalize the conduct of a person who obtained a vehicle under
the authority of a verbal agreement. This conclusion is further
strengthened by the rule of statutory construction that criminal
statutes should be strictly construed against the government. [Fn.
13]
We accordingly conclude that Eppenger could not be
convicted of vehicle theft in either the first or second degree
because he obtained the vehicle via an oral agreement with the
owner.
The conviction is REVERSED.
MANNHEIMER, Judge, concurring.
By accurately reciting the legislative history of
AS 11.46.360 365, Judge Coats's opinion points out the problems
with the State's position in this appeal.
The State argues that if a person takes lawful temporary
possession of a vehicle under an oral agreement (in this case, an
informal agreement between friends) and then the person knowingly
retains the vehicle for any length of time (no matter how short)
past the agreed-upon hour for returning the vehicle, the person
commits a felony the crime of first-degree vehicle theft. The
State asserts that such conduct falls within the statutory
prohibition against "driv[ing] ... or tak[ing]" the vehicle of
another when one has "no ... reasonable ground to believe [that
one] has ... a right [to do so]". AS 11.46.360(a)(1).
The problem with the State's position is that, in
AS 11.46.365(a)(2), the legislature has declared that when a person
initially takes temporary possession of a vehicle under a written
agreement (that is, a more formal agreement) and then knowingly
retains the vehicle "for so long a period beyond the time specified
as to [constitute] an unreasonable deviation from the agreement",
the person commits a misdemeanor the crime of second-degree
vehicle theft. The legislature's enactment of AS 11.46.365(a)(2)
undercuts the State's argument in two ways.
First, the presence of section 365(a)(2) suggests that
the State can not be correct in its reading of section 360(a). The
State asserts that the phrase used in 360(a), "drives ... or takes
[a vehicle]", was intended to cover the conduct of any person who
initially takes temporary possession of a vehicle lawfully but then
fails to return the vehicle as promised. If this were true, then
the legislature would seemingly have no need to enact
AS 11.46.365(a)(2), a section that deals specifically with people
who take temporary possession of a vehicle under a written
agreement and that imposes a lesser punishment for their crime.
The legislature's enactment of this second statute strongly
suggests that the words "drives" and "takes" in section 360(a) were
intended to refer to the defendant's initial act of driving or
taking the vehicle of another. Reading the two statutes (sections
360 and 365) in combination, it appears that the crime of first-
degree vehicle theft requires proof that the defendant's initial
taking of the vehicle was trespassory.
But even if this were not so that is, even if section
360(a) could be interpreted to cover people who initially take
possession of a vehicle with the owner's permission but then exceed
the scope of the granted permission this still leaves the State
in the difficult position of arguing (1) that the legislature
wanted to inflict felony punishment on people who take possession
of a vehicle under an informal, oral agreement between friends and
then fail to return the vehicle by the very minute promised, but
(2) the legislature wanted to inflict only misdemeanor punishment
on people who take possession of a vehicle under a written
agreement (most commonly, a commercial rental agreement) and then
retain the vehicle "for so long a period beyond the time specified
as to render the retention or possession of the vehicle an
unreasonable deviation from the agreement". This simply does not
make sense.
The drafters of the Tentative Draft proposed to punish,
under a single section of the criminal code, all persons who took
temporary possession of a vehicle under any agreement either oral
or written and then failed to return the vehicle for so long a
period of time as to constitute an unreasonable deviation from the
terms of the agreement. The legislature amended this proposal by
inserting the adjective "written" to modify the noun "agreement".
The State would have us infer that the legislature, by this
amendment, indicated a desire to increase the punishment for those
who violate, even if only slightly, an oral agreement for temporary
possession of a motor vehicle, and a concomitant desire to reduce
the punishment for those who violate written agreements indeed,
a desire not to punish these people at all if their deviation from
the written agreement was de minimis. Given the importance that
our society has traditionally accorded to written agreements, the
State's position must be rejected.
For these reasons, I join in the majority's decision.
FOOTNOTES
Footnote 1:
AS 11.46.365(a)(2).
Footnote 2:
See Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997); Cummings
v. Sea Lion Corp., 924 P.2d 1011, 1019 n.11 (Alaska 1996).
Footnote 3:
Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787
(Alaska 1996) (quoting Tesoro Alaska Petroleum Co. v. State, 746
P.2d 896, 905 (Alaska 1987)).
Footnote 4:
Tallent v. State, 951 P.2d 857, 860 (Alaska App. 1997)
(citations omitted).
Footnote 5:
See AS 11.46.365(a)(2).
Footnote 6:
See Alaska Criminal Code Revision Part I, at 3 (Tent. Draft
1977); ch. 114, sec. 1, SLA 1976.
Footnote 7:
See ch. 114, sec. 2, SLA 1976.
Footnote 8:
Id.
Footnote 9:
See Neitzel v. State, 655 P.2d 325, 327 (Alaska App. 1982)
(explaining the history of the Criminal Code).
Footnote 10:
Alaska Criminal Code Revision Part III, at 10-11 (Tent. Draft
1977).
Footnote 11:
Id. at 44-45.
Footnote 12:
See ch. 71, sec.sec. 1, 11, SLA 1996.
Footnote 13:
See Romero v. State, 792 P.2d 679, 682 (Alaska App. 1990);
State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985); Norman J.
Singer, Sutherland Statutory Construction, sec.sec. 59.03, 59.04,
59.06
(4th ed. 1986 rev.).
