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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
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         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).