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Butts v. State (8/23/2002) ap-1821
Butts v. State (8/23/2002) ap-1821
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLYNTON D. BUTTS, )
) Court of Appeals No. A-
7678
Appellant, ) Trial
Court No. 4FA-S99-135 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1821 - August 23, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Raymond M. Funk and
Charles R. Pengilly, Judges.
Appearances: Susan M. Carney, Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, for Appellant.
Douglas H. Kossler, 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.
COATS, Chief Judge.
A jury convicted Clynton D. Butts of robbery in the
second degree1 for forcibly taking a woman's purse from her. He
appeals his conviction, arguing that the trial court erred in
refusing to dismiss the indictment against him and that his
sentence is excessive. We affirm.
Butts was indicted on January 20, 1999, for robbery in
the second degree. The grand jury and trial testimony described
the basis of the charge as follows: Butts accosted Cheryl Joens
in the parking lot of the Bentley Mall Safeway in Fairbanks at
about 10:30 p.m. on January 14, 1999. Joens heard footsteps, saw
Butts running toward her, and felt him grab her purse. She
screamed and struggled with Butts over her purse. She ended up
on the ground, still struggling with Butts over her purse. After
it was clear Butts was not going to give up the purse, Joens
allowed Butts to pull the purse from her grasp in fear he would
attack her with a weapon. Butts took her purse and ran away.
Joseph Fields was in the parking lot during the
incident. He heard Joens scream, turned, saw Butts tackle her,
and ran to help Joens. He yelled at Butts to stop. When Butts
took the purse and ran, Fields chased him - first on foot, then
in his car.
Mark Herz, also in the parking lot during the incident,
saw the others and chased Butts in his vehicle. He and Fields
followed Butts, who dropped the purse while running through a
number of neighboring parking lots to the Back Door Lounge.
Butts entered the Back Door Lounge and, after meeting
with another man, ran through the parking lot to nearby woods.
The Fairbanks Police Department and Alaska State Troopers
responded. Trooper Scott Johnson used a police dog to track
Butts to a snow berm where he was hiding. Butts surrendered,
stating that he had taken the purse because he owed $200 on a
drug debt and that the man he owed the debt had a gun. Butts
later told Fairbanks Police Detective Aaron Ring that he had
taken the purse because he needed drug money.
Butts's first trial ended in a hung jury. But in a
second trial, conducted by Superior Court Judge pro tem Raymond
M. Funk, a jury convicted Butts of robbery in the second degree.
Robbery in the second degree is a class B felony that
carries a four-year presumptive term of imprisonment for a second
felony offender and a six-year presumptive term of imprisonment
for a third felony offender.2 Judge Funk found that Butts had
two prior felony convictions from Oklahoma that qualified as
prior felony offenses for purposes of presumptive sentencing. He
therefore concluded that Butts was a third felony offender
subject to a six-year presumptive term. Judge Funk found that
two aggravators applied to Butts's sentence: that Butts had a
prior criminal history that included "conduct involving
aggravated or repeated instances of assaultive behavior" and that
Butts was "on release under AS 12.30.020 or 12.30.040 for another
felony charge or conviction or misdemeanor charge or conviction
having assault as a necessary element" at the time he committed
this offense.3 Judge Funk sentenced Butts to an aggravated
presumptive term of eight years
with two years suspended and placed him on probation for a period
of five years following his release from confinement.
Butts's challenge to his indictment: Did he
commit a taking by "force"?
After Butts was indicted for robbery, he asked the
superior court to dismiss the indictment on the ground that the
prosecutor failed to instruct the grand jurors on the statutory
definition of "force." Alaska Statute 11.81.900(b)(26) defines
"force" as
any bodily impact, restraint, or confinement
or the threat of
imminent bodily impact, restraint, or
confinement[.]
Butts asserted that the grand jurors needed special instruction
on this issue because the statutory definition of "force" differs
significantly from the normal, everyday definition and because,
given the facts of his case, the grand jurors reasonably might
have concluded that Butts did not use "force" when he took the
purse from Joens.
As explained above, the state presented evidence that
Butts ran up to Joens and took hold of her purse. When Joens
refused to let go of her property, Butts engaged in a tugging
match with her, attempting to wrest the purse from her grasp.
During this struggle, Joens fell to the ground. Joens believed
that Butts would injure her if she did not relinquish the purse,
so she let go.
Butts concedes that, under the everyday meaning of
"force," he took Joens's purse by force. Butts argues, however,
that if the grand jurors had understood that Alaska law defines
"force" in a specialized, limited way, they might have refused to
indict him - because, under the above facts, one reasonably could
conclude that Butts did not effect any bodily impact on Joens,
nor did he threaten her with bodily impact.
Butts's argument runs contrary to the generally
accepted law on this issue. The dividing line between "purse
snatching" (i.e., theft from the person) and robbery is described
in Substantive Criminal Law by LaFave and Scott:
The line between robbery and larceny
from the person . . . is not always easy to
draw. The "snatching" cases, for instance,
have given rise to some dispute. The great
weight of authority, however, supports the
view that there is not sufficient force to
constitute robbery [if] . . . the thief
snatches property from the owner's grasp so
suddenly that the owner cannot offer any
resistance to the taking. On the other hand,
when the owner, aware of an impending
snatching, resists it, or when[] the thief's
first attempt . . . to separate the owner
from his property [is ineffective and] a
struggle . . . is necessary before the thief
can get possession [of the property], there
is enough force to make the taking robbery.4
Under this general rule, the sudden snatching of a
purse, briefcase, or satchel will be only a theft. But
if "a struggle ensues, where the victim is knocked
down, or where the victim is put in fear," the crime
will be robbery.5 It is the act of "wresting" or
"wrenching" (as opposed to merely "grabbing" or
"snatching") that makes the offense a robbery.6
"[E]ven [a] slight tug on the arm by the purse thief
who must use force to wrench the purse from the arm of
the victim" is enough to convert the theft to a
robbery.7
Thus, in State v. Williams,8 the Connecticut Supreme
Court affirmed a robbery conviction arising from a purse-
snatching in which the victim suffered bruises on her shoulder.9
The court concluded that, based on these bruises, the jury
reasonably could have inferred that the victim offered resistance
to the force exerted by the thief in attempting to wrench the
shoulder strap from her - a resistance that converted the purse-
snatching into a robbery.10 Other courts have ruled that the
resistance needed to convert a theft to robbery can arise simply
from the fact that the victim's property was "so attached to the
victim's person or clothing as to create resistance to the
taking."11
However, even though these cases reject Butts's
argument that his conduct did not amount to robbery, they are not
conclusive authority on this question. Many of these states have
definitions of robbery and force that differ from Alaska's. In
particular, very few jurisdictions have definitions of "force"
that restrict this term to "bodily impact," "restraint," and
"confinement."
Under Alaska law, the ultimate issue is whether Butts
effected a "bodily impact" on Joens when he grabbed her purse and
tried to wrest it from her while she held on and resisted his
efforts. We therefore must decide whether the phrase "bodily
impact" includes indirect contacts such as this - instances where
the defendant does not actually touch the victim but, instead,
exerts impact on property that is attached to the victim or that
the victim is holding onto. For the reasons stated below, we
conclude that "bodily impact" does include such indirect
contacts.
We reach this conclusion, in part, by analogy to the
civil tort of battery, which consists of the intentional unlawful
touching of another. This tort can be committed through an
indirect touching of the victim - i.e., by touching the victim's
clothing or articles of property connected to the victim's body.
This concept is explained in Restatement (Second) of Torts:
Since the essence of the plaintiff's
grievance consists in the offense to the
dignity involved in the unpermitted and
intentional invasion of the inviolability of
his [or her] person and not in any physical
harm done to his [or her] body, it is not
necessary that the plaintiff's actual body be
disturbed. Unpermitted and intentional
contacts with anything so connected with the
body as to be customarily regarded as part of
the other's person and therefore as partaking
of its inviolability [are] actionable as an
offensive contact with [the victim's] person.
There are some things such as clothing or a
cane or, indeed, anything directly grasped by
the hand which are so intimately connected
with one's body as to be universally regarded
as part of the person.12
Thus, in Fisher v. Carrousel Motor Hotel, Inc.,13 the defendant
snatched a patron's dinner plate from his hands without touching
the patron.14 The Texas Supreme Court held that the intentional
grabbing of the patron's plate constituted battery.15 Also, in
Morgan v. Loyacomo,16 the Mississippi Supreme Court held that the
defendant's act of forcibly seizing a package from under a
customer's arm constituted battery.17
This same principle applies in prosecutions for
criminal battery. Direct physical contact between the defendant
and the victim is not required; the crime can be committed by the
indirect application of unlawful force.18
For example, in State v. Gammil,19 the New Mexico Court
of Appeals held that the defendant committed the crime of
aggravated battery in circumstances much like Butts's case: the
defendant grabbed the victim's purse and then, attempting to
wrest control of the purse, spun around - with the result that
the victim was thrown to the ground.20 In State v. Ortega,21
the court held that a defendant could be convicted of battery
upon a police officer even if the jury believed the defendant's
testimony that he merely grabbed the officer's flashlight and
knocked it from the officer's hand.22 And in Nash v. State,23
the Florida Court of Appeals held that a criminal battery is
committed not only by the intentional unlawful touching of the
victim's person but also the touching of "an object that has such
an intimate connection to the person as to be regarded as a part
or extension of the person, such as clothing or an object held by
the person."24 The court concluded that the defendant was
properly convicted of battery when he "intentionally touched the
victim's closely held purse against her will."25
Neither the legislative history of our robbery statute
nor the legislative history of our statutory definition of
"force" gives any indication that our legislature intended to
depart from these established rules of criminal law. We
therefore construe the term "bodily impact" in AS
11.81.900(b)(26) to include indirect bodily impacts such as the
one presented in this case. Butts effected a "bodily impact" on
Joens when he attempted to wrest Joens's purse from her grasp
because she actively resisted his effort. He therefore took the
purse by "force" as that term is defined in AS 11.81.900(b)(26).
Having construed AS 11.81.900(b)(26) in this way, we
conclude that Butts suffered no prejudice from the failure of the
prosecutor to give the grand jury a special instruction on the
statutory definition of "force." The evidence clearly
established that Butts used "force" as we now have defined it.
Indeed, the grand jury might have been led astray by the
statutory definition of "force" unless it received a supplemental
instruction that "bodily impact" includes the type of indirect
bodily impact presented here.
Prior felony convictions
Butts contends that Judge Funk erred in finding that
his prior Oklahoma felony convictions qualified as prior felony
convictions for purposes of presumptive sentencing. A prior
conviction from another jurisdiction qualifies as a prior felony
conviction for purposes of presumptive sentencing under AS
12.55.145(a)(1)(B) if it has "elements similar to those of a
felony defined as such under Alaska law at the time the offense
was committed[.]" Our prior case law interprets this statute to
require us to focus on the similarity of the elements of the out-
of-state and Alaska offenses, not on the facts of the defendant's
prior felony.26 An out-of-state statute may be similar to its
Alaska counterpart even though some conduct is penalized by the
out-of-state statute that is not penalized by the Alaska
statute.27 Alaska Statute 12.55.145(a)(1)(B) only requires
similarity between the two offenses, not that they be
identical.28 If the out-of-state statute is more narrowly
defined - if it criminalizes less conduct than its Alaska
counterpart - the defendant's prior conviction will qualify as a
prior felony conviction.29
Butts was convicted under Oklahoma's second-degree
burglary statute, which states:
Every person who breaks and enters any
building or any part of any building, room,
booth, tent, railroad car, automobile, truck,
trailer, vessel or other structure or
erection, in which any property is kept, or
breaks into or forcibly opens, any coin-
operated or vending machine or device with
intent to steal any property therein or to
commit any felony, is guilty of burglary in
the second degree.30
Alaska defines burglary in the second degree as:
(a) A person commits the crime of
burglary in the second degree if the person
enters or remains unlawfully in a building
with intent to commit a crime in the
building.31
The elements of the Alaska and Oklahoma statutes can be
illustrated as follows:
Alaska's second-degree burglary Oklahoma's elements under
which
elements: Butts was convicted:
a person a person
1) enters or remains unlawfully 1) breaks and enters
2) in a building 2) any building or
any part of any building, room,
booth, tent, railroad car,
automobile, truck, trailer, vessel
or other structure or erection, in
which any property is kept, or
breaks into or forcibly opens, any
coin-operated or vending machine or
device
3) with the intent to commit 3) with intent to steal any
property therein or
a crime in the building.32 to commit any felony.33
The first and third elements of the Oklahoma statute
appear to generally be more restrictive than the Alaska statute
(the Alaska statute appears to criminalize conduct which might
not be criminal under the Oklahoma statute). It is only the
second element in the Alaska statute that is apparently more
restrictive than the Oklahoma statute. But Alaska defines
"building" broadly.34 Alaska Statute 11.81.900(b)(4) states:
"building", in addition to its usual meaning,
includes any propelled vehicle or structure
adapted for overnight accommodation of
persons or for carrying on business; when a
building consists of separate units,
including apartment units, offices, or rented
rooms, each unit is considered a separate
building[.]
Alaska Statute 11.81.900(b)(49) states:
"propelled vehicle" means a device upon which
or by which a person or property is or may be
transported, and which is self-propelled,
including automobiles, vessels, airplanes,
motorcycles, snow machines, all-terrain
vehicles, sailboats, and construction
equipment[.]
Therefore, even though the Alaska burglary statute only
apparently covers the entry into buildings on its face, given the
broad definition of building and the broad definition of vehicle,
we conclude that the Alaska statute criminalizes entry into
almost every building and conveyance listed in the Oklahoma
statute. In our opinion, the fact that the Oklahoma statute
criminalizes entry into vending machines does not make the
statute dissimilar. As stated earlier, the fact that Oklahoma's
statute prohibits conduct not covered by Alaska's statute does
not bar the conclusion that the statutes are similar.35 Alaska
Statute 12.55.145(a)(1)(B) only requires similarity between the
statutes, not that they be identical.36 We conclude that the
Oklahoma statute criminalizing burglary in the second degree is
sufficiently similar to the Alaska statute criminalizing burglary
in the second degree for Butts's Oklahoma burglary conviction to
qualify as a prior felony conviction under AS 12.55.145.
Butts also argues that Judge Funk erred in finding that
his Oklahoma conviction for assault and battery with a dangerous
weapon qualified as a prior felony conviction for purposes of
presumptive sentencing.
The Oklahoma assault and battery with a dangerous
weapon statute under which Butts was convicted stated:
Every person who, with intent to do bodily
harm and without justifiable or excusable
cause, commits any assault, battery, or
assault and battery upon the person of
another with any sharp or dangerous weapon,
or who, without such cause, shoots at
another, with any kind of firearm or air gun
or other means whatever, with intent to
injure any person . . . is guilty of a
felony[.]37
Alaska's assault in the third degree statute, AS
11.41.220, states:
(a) A person commits the crime of assault in
the third degree if that person
(1) recklessly
(A) places another person in fear
of imminent serious physical injury
by means of a dangerous instrument;
(B) causes physical injury to
another person by means of a
dangerous instrument[.]
The elements of Alaska's statute as compared to Oklahoma's
statute are as follows:
Alaska's third-degree assault elements: Oklahoma's
elements under
which Butts was
convicted:
1) recklessly 1) intent to do
bodily harm
2) places another person in fear of 2) commits any
assault, battery,
imminent serious physical injury or or assault and
battery upon the
causes physical injury to another person person of
another
3) by means of a dangerous 3) with
any sharp or dangerous
instrument.38 weapon.39
Both statutes criminalize assaults with dangerous
weapons. It generally appears that anyone convicted under the
Oklahoma statute would also violate the Alaska statute. We can
conceive of one exception. Under the Oklahoma statute, a person
conceivably could threaten another person with a dangerous weapon
with intent to do bodily harm but not strike the victim or place
the victim in fear of imminent serious physical injury.40
However, that seems to us to be a small set of cases. If a
person attacks another with a sharp or dangerous weapon with the
intent to do bodily harm, it seems unlikely that the victim would
not either be placed in fear of imminent serious physical injury
or would not be injured in some way. We accordingly conclude
that Judge Funk did not err in determining that the elements of
the Oklahoma and Alaska statutes were sufficiently similar so
that Butts's prior Oklahoma assault conviction qualified as a
prior felony conviction for purposes of presumptive sentencing.
Merger of prior convictions
Butts argues that Judge Funk erred in concluding that
Butts's Oklahoma burglary and assault convictions did not merge
for purposes of presumptive sentencing. The resolution of this
issue turns on an interpretation of AS 12.55.145(a)(1)(C). That
statute provides that separate convictions arising "out of a
single, continuous criminal episode during which there is no
substantial change in the nature of the criminal objective"
constitute a single conviction.41 The statute does not allow the
convictions to merge if the defendant received consecutive
sentences.42 The statute also provides that "offenses committed
while attempting to escape or avoid detection or apprehension
after the commission of another offense are not part of the same
criminal episode or objective[.]"43 The commentary to the
criminal code provides some examples:
The phrase "single, continuous criminal
episode" is intended to limit the
applicability of this provision to a single
criminal event out of which a number of
offenses could be charged. For example, the
breaking and entering of a building with the
intent to commit theft, which can be charged
as burglary, and the taking of property in
the building which can be charged as theft.
In such an instance, convictions for both
burglary and theft would be considered a
single conviction under this section.
However, the commission of three burglaries
involving three buildings in a single day,
would not be considered part of a "single,
continuous criminal episode".
Similarly, the phrase "substantial
change in the nature of the criminal
objective" is intended to limit the
applicability of the provision to a single
criminal objective. In the preceding
example, the criminal objective is to obtain
property and the breaking and entering is an
incident of that objective. However, assume
that the defendant takes a hostage to
facilitate his flight, and then decides to
commit a sexual assault on the hostage. He
is subsequently convicted of burglary, theft,
kidnapping and sexual assault. In such a
circumstance the defendant would have been
convicted of three prior offenses for
purposes of this section, burglary-theft,
kidnapping and sexual assault. Additionally,
the last clause of subsection (a)(3) provides
that an offense committed while attempting to
escape or avoid detection or apprehension
after the commission of another offense is
not included within the provision and is to
be considered an additional conviction for
purposes of presumptive sentencing.44
Butts's Oklahoma convictions arose from his breaking
into the home of Paul Caplinger. At some point during the
burglary, Butts hit Caplinger with the ceramic top to a toilet
water reservoir, causing serious injuries to Caplinger. Butts
argued to Judge Funk that he committed the assault merely to
facilitate his theft of the property during the burglary. He
argued that therefore "there was no substantial change in the
nature of the criminal objective" of his offenses.
Butts had the burden to prove by clear and convincing
evidence that the convictions should merge.45 The facts of
Butts's Oklahoma felonies are subject to two interpretations.
But regardless, the offenses would not merge under either
interpretation. Butts entered Caplinger's residence with the
intent to steal property. He either assaulted Caplinger "while
attempting to escape or avoid detection or apprehension" of the
burglary or he committed the assault for another purpose and the
assault constituted a "substantial change in the nature of the
criminal objective" of the burglary.46 Neither interpretation of
Butts's prior Oklahoma felonies would qualify as a single
conviction under AS 12.55.145. We therefore conclude that Judge
Funk did not err in treating Butts's prior Oklahoma assault
convictions as separate convictions for purposes of presumptive
sentencing.
Aggravating factor
Butts contends that Judge Funk erred in finding the
aggravating factor that Butts was on bail release "for another
felony charge or conviction or for a misdemeanor charge or
conviction having assault as a necessary element[.]"47 According
to the presentence report, in 1998 Butts was charged with assault
in the fourth degree and concealment of merchandise. Butts's
current robbery offense occurred on January 14, 1999. The
presentence report reflects that on June 21, 1999, Butts was
convicted of concealment of merchandise and the assault in the
fourth degree charge was dismissed. It follows that Butts was on
release on the assault charge at the time he committed the
robbery offense. Judge Funk was entitled to rely on the
information in the presentence report unless Butts presented
substantial evidence or made a testimonial denial that the
information in the report was inaccurate.48 Butts made no such
presentation. He merely argues that the information in the
presentence report was insufficient to establish the aggravating
factor by clear and convincing evidence. We conclude that Judge
Funk was entitled to rely on the information in the presentence
report and conclude that he did not err in finding the
aggravating factor.
Mitigating factors
Butts proposed three mitigating factors at sentencing:
AS 12.55.155(d)(3) (committed the offense under duress), (d)(9)
(least serious conduct), and (d)(13) (consistently minor crimes).
Judge Funk rejected all three mitigating factors, finding that
Butts failed to prove them by clear and convincing evidence.
This court reviews Judge Funk's decisions under the clearly
erroneous standard.49
a) AS 12.55.155(d)(3) (committed the
offense under duress)
In support of this mitigating factor, Butts relied on a
statement he made immediately after being caught that he owed a
man $200 for drugs, the man had a gun, and he forced Butts to
steal the money so Butts could pay him back. But when Butts was
interviewed by the police later, he stated that he was a crack
cocaine addict and had taken the purse to obtain money so he
could buy more crack cocaine. Even if we assume that Butts's
first statement, if established as true, could support a finding
that he acted under duress, Judge Funk could reasonably conclude
that Butts's later statement undermined the credibility of his
first statement. Judge Funk found that the only thing that he
was convinced of was that Butts had a serious cocaine problem and
was seeking money so that he could purchase drugs. He concluded
that this was insufficient to establish the duress mitigator.
This finding is not clearly erroneous.
b) AS 12.55.155(d)(9) (least serious
conduct)
Butts argued that his robbery offense was among the
least serious conduct included in the definition of that offense
because he had used little or no force to take Joens's purse.
Judge Funk found that Butts's robbery offense was not a least
serious offense but was somewhere in the middle range of robbery
offenses. In rejecting the mitigating factor, Judge Funk pointed
out that the robbery took place in a parking lot at night and
that Butts used enough force so that Joens was knocked to the
ground. We conclude that Judge Funk's findings are not clearly
erroneous.
c) AS 12.55.155(d)(13) (the facts
surrounding the commission of the
offense and any previous offenses by the
defendant establish that the harm caused
by the defendant's conduct is
consistently minor and inconsistent with
the imposition of a substantial period
of imprisonment)
Judge Funk rejected this mitigating factor
on several grounds. First, as a matter of law, Judge Funk was
required to reject this mitigating factor once he rejected the
mitigating factor that Butts's offense was among the least
serious robbery offenses.50 Furthermore, Judge Funk also
concluded that Butts's current robbery offense and his prior
record suggested that the mitigating factor would not apply even
if he were not precluded from finding the mitigating factor as a
matter of law. Our review of the record supports Judge Funk's
conclusion.
Excessive sentence
Lastly, Butts argues that the sentence Judge Funk
imposed is excessive. But the sentence Judge Funk imposed, eight
years with two years suspended, was the presumptive sentence (six
years) plus two suspended years. Judge Funk was required to
impose the presumptive sentence by law so it is difficult to
conclude that the sentence is excessive. In sentencing Butts,
Judge Funk pointed to the seriousness of Butts's current offense
and his extensive prior record. He concluded that Butts's
offenses arose from drug and alcohol abuse, and he made
provisions for Butts to receive treatment for his substance
abuse. Judge Funk's sentencing remarks support the sentence he
imposed. We conclude that the sentence is not clearly
mistaken.51
Conclusion
We reject all of Butts's claims of error. We
accordingly AFFIRM his convictions and sentence.
_______________________________
1 AS 11.41.510(a)(1).
2 AS 12.55.125(d)(2).
3 AS 12.55.155(c)(8), (12).
4 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law, 8.11(d)(1), p. 445 (1986) (citation
omitted); see also Peter G. Guthrie, Annotation, Purse
Snatching as Robbery or Theft, 42 A.L.R.3d 1381, 1383
(1972).
5 Winn v. Commonwealth, 462 S.E.2d 911, 913 (Va. Ct. App.
1995).
6 See State v. Sein, 590 A.2d 665, 669-70 (N.J. 1991).
7 Mackbee v. State, 575 So.2d 16, 36 (Miss. 1990) (quoting
Commonwealth v. Brown, 484 A.2d 738, 742 (Pa. 1984)).
8 521 A.2d 150 (Conn. 1987), overruled on other grounds,
Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L.Ed2d
371 (1991).
9 Id. at 155-56.
10 Id. at 155.
11 People v. Brooks, 559 N.E.2d 859, 862 (Ill. App. Ct.
1990), abrogated on other grounds, People v. Williams, 599 N.E.2d
913, 917 (Ill. 1992); accord, Raiford v. State, 447 A.2d 496, 500
(Md. Ct. Spec. App. 1982), aff'd in pertinent part, 462 A.2d 1192
(Md. 1983).
12 Restatement (Second) of Torts 18 Cmt. C (1965).
13 424 S.W.2d 627 (Tex. 1967).
14 Id. at 629.
15 Id. at 629-30.
16 1 So.2d 510 (Miss. 1941).
17 Id. at 511.
18 See generally LaFave & Scott, supra note 4, 7.15(b),
at 303.
19 769 P.2d 1299 (N.M. Ct. App. 1989), overruled on other
grounds, State v. Fuentes, 888 P.2d 986, 988 (N.M. Ct. App.
1994).
20 Id. at 1301.
21 827 P.2d 152 (N.M. Ct. App. 1992).
22 Id. at 154-56.
23 766 So.2d 310 (Fla. Dist. Ct. App. 2000).
24 Id. at 311.
25 Id.; see also People v. Harris, 135 Cal.Rptr. 668, 674
(Cal. Ct. App. 1977) (holding that indirect use of force
constituted robbery when defendant tried to push a jewelry case
lid open while the victim tried to hold it shut).
26 See Harlow v. State, 820 P.2d 307, 309 (Alaska App.
1991).
27 See State v. Delagarza, 8 P.3d 362, 367-68 (Alaska App.
2000).
28 See Delagarza, 8 P.3d at 367-68.
29 See id. at 366.
30 Okla. Stat. tit. 21, 1435 (1983).
31 AS 11.46.310(a).
32 AS 11.46.310(a).
33 Okla. Stat. tit. 21, 1435.
34 See AS 11.81.900(b)(4); see also Austin v. State, 883
P.2d 992, 993 (Alaska App. 1994); Pushruk v. State, 780 P.2d
1044, 1047 (Alaska App. 1989) (restaurant inside of hotel was
separate "building" for purpose of burglary statute); Wesolic v.
State, 837 P.2d 130, 132 (Alaska App. 1992) (locked bedrooms and
garage in home constituted separate "building" for purposes of
burglary conviction even though defendant rented a bedroom in the
home). But see Arabie v. State, 699 P.2d 890, 893 (Alaska App.
1985) (a restricted area inside of a building open to the public
is not a separate "building" for purposes of burglary statute).
35 See Delagarza, 8 P.3d at 367.
36 See id. at 367-68.
37 Former Okla. Stat. tit. 21, 645 (1983).
38 AS 11.41.220.
39 Former Okla. Stat. tit. 21, 645.
40 Former Okla. Stat. tit. 21, 645.
41 AS 12.55.145(a)(1)(C).
42 AS 12.55.145(a)(3)(C).
43 See id.
44 Commentary on the Alaska Revised Criminal Code, 2
Senate Journal Supp. No. 47 at 156-59 (June 12, 1978).
45 AS 12.55.145(d).
46 AS 12.55.145(a)(1)(C), (a)(3)(C).
47 AS 12.55.155(c)(12).
48 See Evan v. State, 899 P.2d 926, 930 (Alaska App. 1995)
(sentencing judge entitled to rely on victim's account in
presentence report unless defendant makes a testimonial denial or
otherwise presents substantial information that the report might
be inaccurate).
49 See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska
App. 1991).
50 See Jackson v. State, 890 P.2d 587, 597 (Alaska App.
1995).
51 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
