You can also
search the entire site.
Orr-Hickey v. State (2/9/99) ap-1619
NOTICE: The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention
of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LISA ORR-HICKEY, )
) Court of Appeals No. A-6572
Appellant, ) Trial Court No. 3AN-S96-3701CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1619 - February 5, 1999]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Randall W. Patterson, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Eric A. Johnson, 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, Chief Judge.
Lisa Orr-Hickey was convicted of hunting sheep in a
closed area and possessing illegally-taken game (the sheep). [Fn.
1] She asserts that her jury received flawed instructions
concerning the culpable mental state required for these crimes.
In State v. Rice, [Fn. 2] the Alaska Supreme Court held
that civil negligence is the culpable mental state that governs
hunting offenses. That is, the government must prove that the
hunter either "kn[e]w or reasonably should [have] know[n]" the
circumstances that made the hunter's conduct illegal. [Fn. 3] Orr-
Hickey's jury was instructed in conformity with Rice.
With respect to the charge of hunting in a closed area,
District Court Judge John R. Lohff instructed the jury that the
state was obliged to prove that Orr-Hickey either "knew or
reasonably should have known" that the area was closed to hunting.
Likewise, with respect to the charge of possessing an illegally-
taken sheep, Judge Lohff instructed the jury that the state was
obliged to prove that Orr-Hickey "knew or reasonably should have
known" that the sheep was taken in violation of Alaska's hunting
laws.
Orr-Hickey argues that, even though the supreme court
adopted negligence as the applicable culpable mental state for
hunting offenses, the holding in Rice has been superseded by
AS 11.81.610(b)(2). This statute declares that, with a few
specified exceptions, the government must prove that a defendant
acted "recklessly" with respect to the circumstances that made the
defendant's conduct criminal. As defined in AS 11.81.900(a)(3)-
(4), recklessness is distinguished from negligence in that
recklessness requires proof that the defendant was subjectively
aware of a substantial and unjustifiable risk that the circumstance
existed. Thus, Orr-Hickey concludes, it was not sufficient for the
state to prove that she "should have known" she was hunting in a
closed area. Rather, she asserts, the state was obliged to prove
that she was subjectively aware of a substantial and unjustifiable
risk that the area was closed to hunting.
Orr-Hickey's argument is at odds with this court's
decision in Reynolds v. State. [Fn. 4] In Reynolds, this court
held that AS 11.81.610(b) applies only to the interpretation of
offenses defined in Title 11. [Fn. 5] Orr-Hickey was convicted of
violating administrative regulations promulgated under Title 16.
Orr-Hickey urges us to disavow Reynolds and to now hold
that the rules of statutory interpretation contained in
AS 11.81.610(b) govern all criminal offenses defined in any title
of the Alaska Statutes. She points out that in Knutson v. State,
[Fn. 6] this court held that the definition of accomplice
liability contained in AS 11.16.100-110 applies to Title 16
offenses. Orr-Hickey asks us to hold that AS 11.81.610(b) likewise
applies to Title 16 offenses. We decline to do so for two reasons.
First, as the supreme court noted in Rice, [Fn. 7] there
is historical support for the doctrine that fish and game offenses
should be considered "general police regulations" and that,
therefore, less stringent culpable mental states should apply to
these offenses. Second, and more important, if we were to hold
that AS 11.81.610(b) governed the interpretation of offenses
defined in Title 16, this would yield a result inconsistent with
Rice.
As explained above, AS 11.81.610(b) declares that
recklessness is the default culpable mental state that applies to
circumstances the culpable mental state that must be proved if
the particular statute or regulation does not specify some other
culpable mental state. But the supreme court in Rice held that
negligence is the default culpable mental state for fish and game
offenses.
We can not "overrule" Rice by adopting Orr-Hickey's
statutory interpretation argument unless there is some reason to
believe that the legislature intended AS 11.81.610(b) to supersede
the decision in Rice. There is no support for such an argument.
Rice was decided in April of 1981 three years after AS
11.81.610(b) was enacted, and a year and a half after it went into
effect. [Fn. 8]
We therefore conclude that, for fish and game offenses
defined in Title 16 and in the regulations promulgated under that
title, the holding in Rice remains the controlling law. Civil
negligence is the culpable mental state applicable to Orr-Hickey's
offenses, and Judge Lohff correctly instructed the jurors on that
culpable mental state.
Orr-Hickey raises one additional issue, this one relating
to her sentencing. At the sentencing hearing, Orr-Hickey's
attorney argued that she should receive a suspended imposition of
sentence (SIS). As the defense attorney acknowledged, the legal
hurdle to such a disposition is AS 12.55.085(f)(2), which provides
that a sentencing court
may not suspend the imposition of sentence of
a person who . . . uses a firearm in the commission of the
offense[.]
The defense attorney nevertheless argued that AS 12.55.085(f)(2)
should be construed as applying only to criminal offenses defined
within AS 11.41, the portion of Title 11 entitled "Offenses Against
the Person." Judge Lohff rejected this argument and ruled that the
statute precluded him from giving Orr-Hickey an SIS.
On appeal, Orr-Hickey renews her argument that
AS 12.55.085(f)(2) should be interpreted as applying only to crimes
against people, not all crimes. However, the language of the
statute suggests no such limitation. Orr-Hickey concedes the
"apparent clarity" of the statute, but she nevertheless argues that
the legislature must have intended to limit application of the
statute to crimes against people.
"[When] a statute's meaning appears clear and unambig-
uous[,] the party asserting a different meaning has a
correspondingly heavy burden of demonstrating contrary legislative
intent." [Fn. 9] The plainer the language of the statute, the more
convincing the evidence of contrary legislative intent must be in
order to justify adopting that different meaning. [Fn. 10]
Orr-Hickey acknowledges that AS 12.55.085(f)(2) was
passed with little or no debate and that there is no pertinent
legislative history to aid in interpreting the statute. But she
argues that the legislature's intention can be gleaned from the
other two subsections of AS 12.55.085(f) subsections (1) and (3).
Orr-Hickey argues that both of these other subsections are limited
to crimes defined in AS 11.41 (the chapter entitled "crimes against
the person") and so, by implication, subsection (2) must be
similarly limited.
Orr-Hickey is wrong. The other two subsections of
AS 12.55.085(f) are not limited to the offenses contained in
AS 11.41. [Fn. 11] Subsection (1) declares that a sentencing court
may not give an SIS to a defendant convicted of various crimes.
Among the listed criminal statutes is AS 11.46.400 first-degree
arson. Subsection (3) declares that a sentencing court may not
give an SIS to a defendant convicted of any felony if the defendant
has a prior conviction for any felony (or for misdemeanor assault).
In short, AS 12.55.085(f)(2) declares that a suspended
imposition of sentence may not be given to a defendant who used a
firearm in the commission of the offense. Because there is no
ambiguity in the statutory wording, this court's duty is to enforce
the statute as it is written unless there is some very good reason
to believe that the legislature intended something different. Orr-
Hickey has failed to demonstrate that AS 12.55.085(f)(2) was
intended to mean anything other than what it says. One might
conceive of policy reasons why the legislature would not want the
general rule codified AS 12.55.085(f)(2) to apply to hunting
offenses, but that is for the legislature to decide.
The judgment of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 16.05.920(a); 5 AAC 92.530(4)(B) and 5 AAC 92.140(a).
Footnote 2:
626 P.2d 104, 110 (Alaska 1981).
Footnote 3:
Id.
Footnote 4:
655 P.2d 1313 (Alaska App. 1982).
Footnote 5:
See at 1316 n.4.
Footnote 6:
736 P.2d 775, 779-80 (Alaska App. 1985).
Footnote 7:
626 P.2d at 108.
Footnote 8:
See ch. 166, sec.sec. 10 & 25, SLA 1978.
Footnote 9:
Lagos v. Sitka, 823 P.2d 641, 643 (Alaska 1991).
Footnote 10:
See State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982); State,
Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049
(Alaska 1981).
Footnote 11:
AS 12.55.085(f) provides that
(f) The court may not suspend the
imposition of sentence of a person who
(1) is convicted of a violation of AS
11.41.100 11.41.220, 11.41.260 11.41.320, 11.41.410 11.41.530, or
AS 11.46.400;
(2) uses a firearm in the commission of
the offense for which the person is convicted; or
(3) is convicted of a violation of
AS 11.41.230 11.41.250 or a felony[,] and the
person has one or more prior convictions for a misdemeanor
violation of AS 11.41 or for a felony or for a violation of a law
in this or another jurisdiction having substantially similar
elements to an offense defined as a misdemeanor in AS 11.41 or as
a felony in this state. . . .
In the Court of Appeals of the State of Alaska
Lisa Orr-Hickey, )
) Court of Appeals No. A-06572
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 2/5/99
)
Trial Court Case # 3AN-96-03701CR
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
On consideration of the State's motion to publish Memorandum Opinion and Judgment No.
3950, issued on December 30, 1998,
It is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 3950, issued on December 30, 1998, is
withdrawn and Opinion No. 1619 is issued in its place.
Entered by direction of the Court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Court of Appeals Judges
Central Staff Attorneys
Trial Court Judge Lohoff
Trial Court Appeals Clerk
Publishers
Distribution:
Randall W. Patterson
Attorney at Law
1015 W. 7th Ave
Anchorage AK 99501
Eric A Johnson
OSPA
310 K Street #308
Anchorage AK 99501
