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Saathoff v. State (11/19/99) ap-1652

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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GREG SAATHOFF,                )
                              )         Court of Appeals No. A-7078
                 Appellant,   )      Trial Court No. 3KN-97-1961 Cr
                              )
                  v.          )              
                              )          O  P  I  N  I  O  N
STATE OF ALASKA,              )                
                              )
                 Appellee.    )     [No. 1652     November 19, 1999]
                              )


          Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.

          Appearances:  Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant.  Marcelle K. McDannel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee. 

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          MANNHEIMER, Judge.

          In the summer of 1988, Greg Saathoff was working as a cab
driver in Anchorage.  A man he did not know approached him and
offered to sell him an old rifle for $100.00.  When Saathoff
demurred, the man lowered his price to $35.00.  Despite his
suspicion that the rifle might be stolen property, Saathoff
purchased the weapon.  A short time later, Saathoff's suspicion was
confirmed:  a weapons appraiser informed him that the rifle was a
valuable antique, worth approximately $500.00.  Even though Saathoff
was now sure that the rifle was stolen, he kept it.    
          Nine years later, in the summer of 1997, Saathoff used the
rifle to shoot a neighbor's dog.  When the neighbor responded by
trying to shoot Saathoff, Saathoff summoned the police.  The police
arrived and secured all the weapons at the scene   including the
antique rifle.  The officers checked the serial number of the rifle
and found that the weapon had been reported stolen in 1988.  After
Saathoff disclosed that he had purchased the rifle from an anonymous
seller for $35.00, he was charged with second-degree theft.  
          Under Alaska's statute of limitations, AS 12.10.010, a
prosecution for second-degree theft must be commenced within five
years of the commission of the offense.  Saathoff claims that,
because of this five-year limitation, the State could not charge him
in 1997 for a theft he committed in 1988.  
          The State argues that Saathoff's prosecution was timely
because Saathoff's offense was "theft by receiving" as defined in
AS 11.46.190(a).  According to the State, the offense of "theft by
receiving" continues for as long as the person retains the stolen
property.  The State contends that, although Saathoff's offense may
have begun in the summer of 1988, his offense continued until the
summer of 1997, when the police seized the rifle. 
          In resolving this debate about the nature of theft by
receiving, we are guided by the rule of construction expressed by
the legislature in AS 12.10.030.  The pertinent part of this statute
declares that, for purposes of calculating the period of limitation,

                     
                    [a]n offense is committed either when every
                    element [of the offense] occurs, or, if a
                    legislative purpose to prohibit a  continuing
                    course of conduct plainly appears, at the time
                    when the course of conduct or the defendant's
                    complicity therein is terminated. 
                    
          This statute directs us to construe offenses as occurring at one
particular time or as comprising one discrete episode, unless it
"plainly appears" that the legislature intended to define the
offense as a continuing course of conduct. 
          As defined in AS 11.46.190(a), theft by receiving is
committed when a person "buys, receives, retains, conceals, or
disposes of property ... with reckless disregard that the property
was stolen".  The State focuses on the fact that one of the five
prohibited acts is "retaining" stolen property.  The word "retain",
when applied to property, normally connotes a continuing possession
or withholding. [Fn. 1]  Based on this "plain meaning" of the word
"retain", the State contends that the legislature intended that
theft by receiving be a continuing offense. 
          Courts from various other jurisdictions have found this
argument convincing.  In particular, the courts of Oregon [Fn. 2]
and Hawai'i [Fn. 3] have construed their theft by receiving statutes
as defining continuing offenses   primarily because the words
"retain" and "conceal" normally connote continuing activities. 
These decisions from Oregon and Hawai'i are particularly noteworthy
because, according to the drafters of Alaska's criminal code, the
theft statutes of those two states were among the primary sources
for Alaska's theft provisions. [Fn. 4]  
          Despite this support for the State's argument, the
legislative history of Alaska's theft statutes indicates that the
Alaska Legislature did not intend for theft by receiving to be a
continuing offense.  

          The legislature intended to create one unified crime of
     theft.
          
               The legislative commentary to Alaska's theft statutes (AS
11.46.100-210) declares that the "primary purpose" of this group of
statutes was to consolidate all of the common law's disparate
larceny and larceny-related offenses (including "receiving stolen
property") into one unified crime of "theft". [Fn. 5]  This purpose
is most clearly reflected in the language of AS 11.46.100 (the
statute defining theft) and AS 11.46.110 (the statute directing the
consolidation of all theft offenses for purposes of pleading and
proof), as well as in the legislative commentary to these statutes. 

          AS 11.46.100, the statute defining theft, reads: 
                     
                    Theft defined.  A person commits theft if 
                    
                         (1) with intent to deprive another of
          property or to appropriate property of another to oneself or a third
person, the person obtains the property of another;
                    
                         (2) the person commits theft of lost or
          mislaid property under AS 11.46.160; 
                    
                         (3) the person commits theft by deception
          under AS 11.46.180; 
                    
                         (4) the person commits theft by receiving
          under AS 11.46.190;
                    
                         (5) the person commits theft of services
          under AS 11.46.200; [or] 
                    
                         (6) the person commits theft by failure to
          make required disposition of funds received or held under AS
11.46.210.
                    
                    At first blush, AS 11.46.100 may appear to define six
different ways of committing theft (including "theft by receiving
as defined in AS 11.46.190").  But the legislature did not intend
the statute to be construed this way.  In its accompanying
commentary, the legislature declared:  "It is important to note that
the conduct described in [sections (2) through (6) of the statute]
do[es] not define separate crimes." [Fn. 6]  (Emphasis added)  
          As we held in Cheely v. State [Fn. 7], the definition of
theft contained in section (1)   obtaining the property of another
with the intent to appropriate the property or deprive someone else
of the property   was intended to be a general definition of the
offense, encompassing the five other listed forms of theft.  As
stated in the commentary to the Tentative Draft, the other five
sections of AS 11.46.100 were included "as a concession to the
potential hold of tradition". [Fn. 8]  
          The definition of "obtain" codified in AS 11.46.990(11)
includes any "exert[ion of] control over property of another".  As
we noted in Cheely, the legislature's broad definition of "obtain"
"extends the concept of taking to include constructive acquisition
of property". [Fn. 9]  Thus, theft by asportation and theft by
receiving are not distinct offenses under Alaska's theft statutes.
[Fn. 10]  
          This same legislative purpose to consolidate all forms of
theft into one unified crime is evident in AS 11.46.110, the statute
governing the government's pleading and proof in theft cases. 
Section (b) of this statute declares, "[a]n accusation of theft is
sufficient if it alleges that the defendant committed theft of
property or services ... without designating the particular way or
manner in which the theft was committed."  The drafters of Alaska's
criminal code declared that this statute was meant to "to underscore
one of the chief aims of the theft article:  elimination of the
confusing distinctions among the most typical theft offenses in
existing law." [Fn. 11]  
          Ironically, the drafters of Alaska's theft statutes quoted
extensively from a commentary written by the primary drafter of the
Oregon Revised Criminal Code to show the necessity for enacting a
consolidated pleading and proof statute like AS 11.46.110.  The
quoted portion reads: 
                     
                    As noted by the Model Penal Code reporters,
          despite the substantial consolidation of ... theft offenses,  ...
the tendency to cling to the old categories is so strong that it is
considered advisable to state expressly what logically follows [from
the consolidation of all theories of theft into one general crime].
[This] special section detail[s] the procedural consequences of the
consolidation of theft offenses.  ...  A general allegation that the
defendant committed theft of property of the nature or value
required for the commission of the particular crime will be
supportable by proof that [the defendant] engaged in conduct
constituting ... common law larceny, "embezzlement", "theft by
receiving", or some other type of thievish conduct.
                    
          Alaska Criminal Code Revision, Tentative Draft, Part 3, pp. 22-23
(quoting Paillette, The Oregon Theft Laws:  Consolidation v.
Conglomeration, 51 Oregon Law Review 525 (1972) (internal quotations
omitted)). 
          The Alaska drafters' reliance on Paillette's commentary
is ironic because, as explained above, the Oregon courts (without
acknowledging Paillette's commentary or any other commentary on the
Oregon statutes) have construed Oregon's theft by receiving statute
to define a separate (and continuing) offense.  As the Oregon courts
have construed their law, the original thief can be prosecuted and
convicted separately for later "concealing" or "retaining" the
stolen property. [Fn. 12]  Although we must leave construction of
Oregon's statutes to the Oregon courts, such a result seems directly
at odds with the Alaska Legislature's expressed intention to
consolidate all theft offenses into one unified crime of theft for
purposes of pleading, proof, and punishment. 
          In our prior decisions, we have recognized and implemented
this legislative purpose.  For example, in Cheely and in Williams
v. State [Fn. 13], this court held that an indictment charging
"theft" under the general definition codified in AS 11.46.100(1)
necessarily encompasses the other five forms of theft.  Thus, a
trial jury can convict the defendant under a "receiving" theory even
though the State's theory of prosecution is that the defendant
personally stole the property. [Fn. 14] 
          In sum, the extensive legislative history of Alaska's
theft statutes ineluctably leads to the conclusion that the Alaska
Legislature did not intend to create a separate offense when they
codified "theft by receiving" in AS 11.46.190.  Rather, the
legislature viewed "theft by receiving" as simply a subset of the
general definition of theft codified in AS 11.46.100(1).  From this,
we infer that the legislature deemed the various acts described in
the theft by receiving statute ("buying", "receiving", "retaining",
"concealing", and "disposing of" property) to be only particularized
forms of "obtaining" property   an act defined in AS 11.46.990(11)
as "exert[ing] control over property" in any fashion. 

          The word "retain", as it is used in Alaska's theft by
     receiving statute, does not refer to a continuing course of conduct.
          
               The fact that the legislature intended AS 11.46.100-210
to create a unified crime of theft suggests that we should not
construe the word "retain" in AS 11.46.190 to create a continuing
offense   for such a construction would make theft by receiving
distinct from the other varieties of theft defined by the
legislature.  Nevertheless, the word "retain" normally connotes a
continuing activity.  Could the legislature have used this word and
still have been contemplating a non-continuing offense?  The answer
is yes, and the explanation is found in the commentary to the Model
Penal Code. 
          The Model Penal Code was the progenitor of all the modern
theft statutes (like Oregon's and Alaska's) that create a unified
crime of theft, eliminating the common-law distinctions among
larceny and larceny-type offenses. [Fn. 15]  Like Alaska's theft
statutes,  the Model Penal Code contains both a general definition
of theft, sec. 223.2(1), and a definition of receiving stolen
property,
sec. 223.6(1).  
          The Model Penal Code's general definition of theft is
broad like Alaska's.  Model Penal Code sec. 223.2(1) declares that
a
person is guilty of theft if the person "exercises unlawful control
over ... property of another with purpose to deprive him thereof." 
This Model Penal Code provision appears to be the source of the
definition of "obtain" codified in AS 11.46.990(11)    "to exert
control over property of another".  
          And, like the definition of "theft by receiving" found in
AS 11.46.190, the Model Penal Code's definition of "receiving stolen
property" also uses the word "retain" to define the actus reus of
the offense.  Model Penal Code sec. 223.6(1) states:  "A person is
guilty of theft if he purposely receives, retains, or disposes of
movable property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless [the person's]
purpose [is] to restore it to the owner." 
          A third similarity between Alaska law and the Model Penal
Code is that the drafters of the Model Penal Code viewed receiving
stolen property as merely a subset of the general crime of theft. 
In their commentary to Model Penal Code sec. 223.6, the drafters
cataloged the different formulations of receiving stolen property
enacted by various legislatures [Fn. 16], and they concluded that
"the essential idea" behind all of these formulations was
"acquisition of control, whether in the sense of physical dominion
or of legal power to dispose". [Fn. 17]  Because of this, the
drafters did not view receiving stolen property as distinct from the
general definition of theft:  "Analytically, the receiver [of stolen
property] does precisely what is forbidden by [the general
definition of theft contained in] sec. 223.2(1)   namely, he
exercises
unlawful control over property of another with a purpose to
deprive." [Fn. 18]      
          But, unlike Alaska's commentary, the Model Penal Code
commentary contains an explicit explanation of what the drafters
meant when they used the word "retain" to define the crime of
receiving stolen property.  In their commentary, the drafters of the
Model Penal Code explain that they used the word "retain" in their
definition of receiving stolen property so that the statute would
cover situations where a defendant innocently takes possession of
stolen property or otherwise exercises control over stolen property,
unaware that it has been stolen, and then later learns the true
origin of the property:
                     
                    By defining "receiving" to include the
                    retention of possession, the Model Code ...
          makes it possible to convict a person who receives [property]
without knowledge that the goods were stolen but who, upon learning
of their status, nevertheless resolves to keep or sell them. 
                    
          Model Penal Code, Part II, commentary to sec. 223.6, p. 235.  
          In other words, "retain" is not being used in its usual
sense of an ongoing, continuing possession.  Rather, the Model Penal
Code drafters used "retain" to describe a defendant's action at a
particular point in time   the time when the defendant acquires the
culpable mental state required for theft (awareness that the
property is probably stolen).  At that time, the defendant must
decide what to do with the property.  If the defendant's decision
is to keep it, the defendant has "retained" the property, and the
crime of receiving is now complete. 
          Alaska's definition of burglary contains an analogous use
of language.  Under AS 11.46.310(a), a person commits burglary if
the person "enters or remains unlawfully in a building with intent
to commit a crime in the building".  "Remains" (like "retains") is
a word that normally suggests continuing conduct.  But in Shetters
v. State [Fn. 19],  this court rejected the contention that a person
"remains unlawfully" in a building whenever the person steals
property from the building.  Instead, we clarified that even though
a defendant unlawfully remains in a building and thereafter commits
a crime in the building, the defendant will have committed a
burglary only if they had the intent to steal at the time their
presence first became a trespass:  
                     
                    If [a defendant does] not have an intent to
          steal at the time his presence on the premises first [becomes]
unlawful, he [can] not be convicted of burglary.  The intent to
commit a further crime must co-exist with the initial criminal
trespass[.] 
                    
          Shetters, 751 P.2d at 36 n.2.  
          Thus, for purposes of the burglary statute, the
defendant's act of unlawfully "remaining" is not continuing conduct. 
Like the word "retains" in the theft by receiving statute, the word
"remains" in the burglary statute refers to a particular point in
time:  the time when the defendant's privilege to be in a building
expires and the defendant must decide whether to leave or stay.  If
the defendant decides to stay, the defendant "remains unlawfully". 
If, at that time, the defendant has the intent to commit a crime in
the building, then the defendant has committed burglary.  But if the
defendant remains unlawfully in the building with no intent to
commit a crime, and does not form the intent to commit a crime until
later, there is no burglary.  In this context, "remains" does not
refer to a continuing action.  
          We therefore conclude that, when the Alaska Legislature
used the word "retains" in the theft by receiving statute, the
legislature was not referring to the defendant's entire, continuing
possession of stolen property.  Rather, like the drafters of the
Model Penal Code, the legislature used "retains" to refer to the
defendant's conduct at the time the defendant becomes aware that
property in their possession is probably stolen.   

          Conclusion:  Theft by receiving is not a continuing
     offense.
          
               We admit that the State has plausible arguments why the
theft by receiving statute might be construed as creating a
continuing offense.  However, the legislative history of the statute
demonstrates that the State's arguments are not as strong as they
might first appear.  Having examined that legislative history, we
conclude that the legislature did not intend theft by receiving to
be construed as a continuing offense.  
          Moreover, even if we believed that the proper
interpretation of the statute was in doubt, we would nevertheless
be obliged to follow the rule of construction codified in AS
12.10.030:  a criminal statute should not be construed as creating
a continuing offense unless it "plainly appears" that the
legislature intended to define the offense as a continuing course
of conduct.  At best, the State's arguments show only that the
proper construction of the statute is reasonably debatable.  This
being so, we must rule against the contention that theft by
receiving is a continuing offense. 
          Saathoff committed the offense of theft by receiving in
1988, when he discovered that the antique rifle was most likely
stolen but he nevertheless decided to keep the weapon.  Under AS
12.10.010, the State had five years to commence a prosecution
against Saathoff for second-degree theft.  That five-year period
expired in 1993.  Because the prosecution against Saathoff was not
commenced until 1997, the superior court should have granted 
Saathoff's motion to dismiss the charge for it was barred by the
statute of limitations. 
          The judgement of the superior court is REVERSED. 



                            FOOTNOTES


Footnote 1:

     See, e.g., Webster's New World Dictionary of American English
(Third College Edition, 1988), which defines "retain" as meaning "to
hold or keep in [one's] possession[;] to keep in a fixed state or
condition".  Id., p. 1145.  


Footnote 2:

     See State v. Carlton, 378 P.2d 557, 558 (Or. 1963), State v.
Harelson, 938 P.2d 763, 766 (Or. App. 1997), and State v. Knutson,
725 P.2d 407, 409 & n.3 (Or. App. 1986), all construing O.R.S. sec.
164.095(1), which defines theft by receiving as "receiv[ing],
retain[ing], conceal[ing], or dispos[ing] of property of another,
knowing or having good reason to know that the property was the
subject of theft".  Carlton held that a person who steals property
(i.e., commits theft by taking) can also be separately convicted of
theft by receiving if they later "conceal" the property   because
concealment is a continuing act.  Knutson reached the same
conclusion.  Harelson held that, because retention is a continuing
act, a thief who "retains" property after the initial act of theft
can be separately convicted for theft by receiving. 


Footnote 3:

     See State v. Temple, 650 P.2d 1358, 1361-62 (Haw. 1982),
construing HRS sec. 708-830(8), which defines the crime of theft by
receiving as "receiv[ing], retain[ing], or dispos[ing] of the
property of another, knowing it has been stolen".  Temple held that
this statute defines a continuing offense because in normal usage
the word "retain ... describes an ongoing course of conduct".  


Footnote 4:

     See Alaska Criminal Code Revision, Tentative Draft, Part 3
(1977), Appendix I, pp. 101 & 104. 


Footnote 5:

     1978 Senate Journal, Supp. No. 47 (June 12), p. 30.  


Footnote 6:

     1978 Senate Journal, Supp. No. 47 (June 12), p. 30. 


Footnote 7:

     850 P.2d 653, 659 (Alaska App. 1993). 


Footnote 8:

     Alaska Criminal Code Revision, Tentative Draft, Part 3, p. 19. 


Footnote 9:

     Cheely, 850 P.2d at 659 (quoting 1978 Senate Journal, Supp. No.
47, p. 31). 


Footnote 10:

     See id. at 659, 662-63. 


Footnote 11:

     Alaska Criminal Code Revision, Tentative Draft, Part 3, p. 22. 


Footnote 12:

     See note 2. 


Footnote 13:

     648 P.2d 603 (Alaska App. 1982). 


Footnote 14:

     See Cheely, 850 P.2d at 661; Williams, 648 P.2d at 606. 


Footnote 15:

     See W. LaFave & A. Scott, Substantive Criminal Law (1986), sec.
8.8(d), Vol. 2, pp. 414 n.22, 415.  


Footnote 16:

     American Law Institute, Model Penal Code and Commentaries
(1980), Part II, commentary to sec. 223.6, pp. 234-35. 


Footnote 17:

     Id., p. 235. 


Footnote 18:

     Id., p. 232. 


Footnote 19:

     751 P.2d 31 (Alaska App. 1988).