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Houston v. Municipality of Anchorage (12/6/2002) ap-1844
Houston v. Municipality of Anchorage (12/6/2002) ap-1844
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
LOVIE D. HOUSTON, )
) Court of Appeals No.
A-7930
Appellant, ) Trial
Court No. 3AN-M00-9016 CR
)
v. )
) O P I N I
O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
) [No. 1844 - December
6, 2002]
Appeal from the District Court, Third Judi
cial District, Anchorage, John Lohff, Judge.
Appearances: Dennis P. Cummings, Gorton &
Logue, Anchorage, for Appellant. John E.
McConnaughy III, Assistant Municipal
Prosecutor, and William A. Greene, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
Coats, Chief Judge.
Lovie D. Houston was convicted under Anchorage
Municipal Code (AMC) 8.45.010(A)(2) of trespassing on private
business or commercial property because he entered his former
apartment after he had notice that the property was not open to
him. Houston argues that the trial court should have granted his
motion for judgment of acquittal because the Municipality failed
to prove that he had trespassed on private business or commercial
property. He also argues that the court erred by refusing to
define private business or commercial property for the jury, and
by not permitting him to argue that the apartment did not fall
within that definition.
Because the Anchorage trespass ordinance distinguishes
types of property based on use, not based on who has possessory
rights to the property, the Municipality should have charged
Houston with trespassing on residential property under AMC
8.45.010(A)(1). However, by convicting Houston of trespassing on
commercial property under subsection (A)(2), the jury necessarily
found that Houston had entered the apartment without a privilege
to do so the elements necessary to convict him of trespassing on
residential property under subsection (A)(1). Moreover, Houston
has not shown that he was prejudiced because he was charged under
the wrong subsection of the ordinance. For these reasons, we
affirm the jurys verdict.
Facts and proceedings
On October 2, 2000, Houston was evicted from an
apartment at 915 West 29th Street in Anchorage. Houston received
notice that he was to be out of the apartment by noon on October
4. Nevertheless, he entered the apartment on October 5,
apparently through a window, to retrieve property he had left
there. The police arrested him for trespass.
The Municipality charged Houston under AMC
8.45.010(A)(2), which prohibits trespassing on private business
or commercial property. After the Municipality presented its
case, Houston moved for judgment of acquittal, claiming that the
Municipality had failed to show that the apartment he entered was
business or commercial property. Houston also asked the court to
instruct the jury on the definitions of commercial, residential,
and public buildings contained in an unrelated state statute
governing the safety of glazing.1 That statute defines commercial
buildings as buildings including but not limited to wholesale and
retail stores and storerooms, and office buildings, and
residential buildings as structures including but not limited to
homes and apartments used as dwellings for one or more families
or persons.2
District Court Judge John Lohff denied Houstons motion
and refused to instruct the jury on his proposed definitions.
Judge Lohff did not decide whether the apartment Houston was
charged with entering was residential or commercial property.
Instead, Judge Lohff ruled that the type of property trespassed
upon was irrelevant under the facts of Houstons case because the
gravamen of the offense was whether he had entered the apartment
when he had notice he was not supposed to be there. Based on
this ruling, the court barred Houston from arguing to the jury
that the apartment was not commercial property.
Judge Lohff offered several times to permit the
Municipality to amend the information to charge Houston with
trespassing on residential property. Houston repeatedly opposed
that amendment. The Municipality initially declined to amend the
charge because the district court had ruled that the apartment
was commercial property. But the court later retreated from that
ruling, and again offered to permit the Municipality to amend the
charge. Houston vigorously opposed any such amendment. He
argued that he would be prejudiced if he was charged mid-trial
with trespassing on residential property because his defense was
that the Municipality had failed to prove that he had entered
commercial property, and he had cross-examined the officers based
on that defense.
The jury convicted Houston of trespass.3 Houston
appeals that conviction.
Was Houston properly charged with trespassing on
commercial property?
The jury was instructed that it could convict Houston
for trespassing on private business or commercial property under
two alternative theories: by finding that he had actual notice
that the property was not open to him (Count 1), or by finding
that he had violated a prominently posted notice against trespass
or use (Count 2).4 The jury convicted Houston for trespassing
when he had actual notice that the property was not open to him,5
and thus did not reach the latter count.
The threshold issue raised by this appeal is whether
the Municipality properly charged Houston with trespassing on
business or commercial property for entering his former
apartment. Because the ordinance does not define business or
commercial property, the definition of those terms are legal
issues for this court.6
As a general rule, trespass statutes distinguish
structures based on their use and on the interest to be
protected.7 Alaskas first-degree criminal trespass statute, like
the Model Penal Code, increases the penalty for trespassing if a
dwelling is involved.8 A dwelling is defined as a building that
is designed for use or is used as a persons permanent or
temporary home or place of lodging.9 That definition would
encompass a vacant apartment in this case, an apartment that was
suitable for occupancy but no longer had a legal tenant.10 Most
jurisdictions treat vacant apartments as dwellings, based either
on the language of their statutes or the policy that an intrusion
in even a vacant and unoccupied apartment poses a threat to the
personal security of nearby residents.11
If other criminal trespass statutes are an appropriate
guide, the apartment Houston entered should be defined as
residential rather than commercial because it was a dwelling;12
even though it had no tenant, it was designed and still suitable
for habitation.
But, as the Municipality points out, the Anchorage
ordinance is not organized like most trespass statutes. The
ordinance distinguishes residential from commercial property not
to make trespassing on the former a more serious offense the
penalties for both offenses are identical but to establish
differences in how trespassing on those two types of private
property must be proved.
To show that a person trespassed on residential
property, the Municipality need only prove that the person had no
privilege to be there; to prove that a person trespassed on
commercial property, the Municipality must prove that the
property was closed to the public, that the property was
prominently posted against trespass, that the person had actual
notice that the property was not open to him or her, or that the
person had been asked to leave by someone with apparent authority
to do so. This distinction makes sense because people generally
have no right to enter residential property without an invitation
(with the exception of areas of ingress and egress that are
impliedly open to public use13), but they commonly do have the
right to enter commercial or business property absent notice that
the property is closed or the right to enter has been withdrawn.
The Municipality argues that the ordinance
distinguishes the nature of the property trespassed upon based on
who has possessory rights to that property. Thus, a rented
apartment would be residential property because the tenant would
have possessory rights.14 But because Houston had been evicted
from his apartment, the Municipality argues, possessory rights
had reverted to the landlord, a commercial entity.
The Municipalitys proposed construction does not square
with the policy behind the trespass ordinance. The ordinance
imposes more burdensome duties of notice on commercial and
business property owners because of the quasi-public nature of
their property. An apartment or other residence does not lose
its private character and become commercial simply because it is
between rentals and has been repossessed by a lender.
Furthermore, the Anchorage zoning ordinances treat
apartment buildings as residential property,15 and the
Municipality points to no contrary definitions in the municipal
code to suggest that apartments should be characterized
differently for purposes of the trespass ordinance. Unless words
have acquired a peculiar meaning, by virtue of statutory
definition or judicial construction, they are to be construed in
accordance with their common usage.16 Websters New World
Dictionary defines residential as of or connected with residence
and of, characterized by, or suitable for residences, or homes.17
Because an apartment falls within the commonly used definition of
residence, we conclude that Houston was charged and convicted
under the wrong subsection of the trespass ordinance.
Should Houstons conviction be reversed?
The question remains whether Houstons conviction should
be reversed because of this error. Under Criminal Rule 7(c), a
defect in the form of an information does not invalidate a
conviction unless the defendants substantial rights were
prejudiced. Similarly, under Criminal Rule 7(e), an information
may be amended any time before a verdict if no additional or
different offense is charged and the substantial rights of the
defendant are not prejudiced. If the Municipality had amended
the information to charge Houston with trespass on residential
property, that amendment would not have alleged a change in the
nature of Houstons underlying criminal act: entering or remaining
in an apartment when he had notice that the apartment was not
open to him. The information fully apprised Houston that the
charged offense included those essential elements.18
Furthermore, the parties never disputed that Houston
was in the apartment at the time of his arrest. To convict
Houston of trespassing on commercial property under AMC
8.45.010(A)(2)(c), the jury was required to find the elements
necessary to that offense that he knowingly entered or remained
in the property when he had actual notice not to be there. If
Houston had actual notice that he was not allowed in the
apartment, he necessarily also entered or remained without a
privilege to do so the elements required to convict him of
trespass on residential property under AMC 8.45.010(A)(1). Thus,
under the facts of Houstons case, trespassing on residential
property was in effect a lesser-included offense of trespassing
on commercial property.19
Lastly, Houston has not shown how he was prejudiced
because he was charged under the wrong subsection of the trespass
ordinance. Houstons main defense at trial was that he had not
committed the offense the Municipality had charged him with
trespassing on commercial property. When Judge Lohff ruled mid-
trial that the type of property trespassed upon was irrelevant
under the facts of the case, this ruling conceivably might have
prejudiced Houston if, in reliance on the Municipalitys charging
error, he had not fully prepared an alternative available
defense. But Houstons brief on appeal does not suggest how his
defense would have been different if he had been charged
correctly. Nor can we discern any obvious defense from the
record, given that Houston concedes he entered the apartment on
October 5 after receiving notice to be out of the apartment by
October 4.
At trial, Houston told Judge Lohff that he would have
cross-examined the police officers differently if he had been
charged with trespassing on residential property. But the only
testimony Houston elicited from the officers that was relevant to
the type of property he entered was either neutral or would have
worked to his benefit if he had been charged with residential
trespass the officers characterized the property as an apartment
complex, where people live, and commercial property, which is
apartment rentals. Moreover, Houston offered no convincing
alternative defense. He testified that he had difficulty reading
the documents notifying him of the exact time he was required to
be out of the apartment, but he conceded he knew he was supposed
to be out of the apartment by October 4. At one point, Houston
testified that he had not entered the apartment through the
window as alleged; but elsewhere he acknowledged he had climbed
through the window on October 5. He complained that the
apartment management had locked him out of the apartment and
otherwise made it difficult for him to remove his property by the
October 4 deadline. But the jury convicted Houston despite this
testimony.
Because Houston has not demonstrated that the
Municipalitys error in charging him under the wrong subsection of
the trespass ordinance prejudiced him, we conclude that the error
was harmless.20 Therefore, the district court did not err in
denying Houstons motion for judgment of acquittal.
Conclusion
The jurys verdict is AFFIRMED.
_______________________________
1 AS 18.60.780 (defining glazing as the act of installing
and securing glass or other glazing material into prepared
openings in structural elements including but not limited to
doors, enclosures, and panels).
2 AS 18.60.780(2), (12).
3 AMC 8.45.010(A)(2)(c).
4 AMC 8.45.010(A)(2)(b), (c).
5 AMC 8.45.010(A)(2)(c).
6 Cf. Maness v. State, 49 P.3d 1128, 1137 (Alaska App.
2002) (Mannheimer, J., concurring); Sears v. State, 713 P.2d
1218, 1219 (Alaska App. 1986).
7 See 75 Am. Jur. 2d Trespass 187 (2d ed. 1991); cf. 13
Am. Jur. 2d Burglary 28, at 201 (2d ed. 2000) (It is the element
of habitation, not the nature of the structure, that elevates the
crime of burglary to first degree.).
8 AS 11.46.320; American Law Institute, Model Penal Code
and Commentaries, Part II, 221.2, at 85, 91 (1980).
9 AS 11.81.900(21).
10 We have held in the context of the state burglary
statute that a dwelling does not lose its character as a dwelling
simply because it is unoccupied. See Champion v. State, 908 P.2d
454, 470 (Alaska App. 1995) (noting that Alaska law classifies
the burglary of any dwelling, occupied or not, as first-degree
burglary); Shetters v. State, 751 P.2d 31, 36-37 (Alaska App.
1988) (holding, in the context of an ineffective assistance of
counsel claim, that the trial jury could have found that an
unfinished house that was virtually complete but still unoccupied
was a dwelling for purposes of the burglary statute).
11 See, e.g., People v. Silva, 628 N.E.2d 948, 952-53
(Ill. App. 1993) (unoccupied garden-level apartment undergoing
renovation was a dwelling for purposes of the residential
burglary statute even though it had been vacant for seven
months); State v. Scott, 776 A.2d 810, 815-16 (N.J. 2001) (rental
apartment that was vacant but available and suitable for rent was
a dwelling for purposes of the criminal trespass statute); State
v. Ramey, 749 P.2d 1219, 1221 (Or. App. 1988) (apartment was a
dwelling for purposes of the criminal trespass statute even
though the owner was remodeling it and it had been vacant for two
months); Matter of E.P., 963 S.W.2d 191, 193 (Tex. App. 1998)
(jury could have found that vacant apartment in apartment complex
was habitation for purposes of the criminal trespass statute
because the apartment was adapted for overnight accommodation of
persons); cf. State v. Edwards, 589 N.W.2d 807, 811 (Minn. App.
1999) (dwelling had not lost its residential character for
purposes of burglary statute because the sole occupant had
recently died); People v. Barney, 742 N.Y.S.2d 451, 453 (N.Y.
App. 2002) (same). But see Poff v. State, 241 A.2d 898, 900 (Md.
App. 1968) (vacant apartment rented to police for sting operation
was not dwelling, but a place where furniture was stored pending
its rental by a new tenant); People v. Murray, 718 N.Y.S.2d 554,
556 (N.Y. App. 2000) (finding insufficient evidence that the
defendant entered a dwelling when he entered a two-family rental
unit in which the upstairs apartment had been vacant for several
months and the downstairs apartment was boarded up).
12 We have routinely referred to burglary in a dwelling as
residential burglary. See, e.g., Champion, 908 P.2d at 470;
Wesolic v. State, 837 P.2d 130, 134 (Alaska App. 1992). Other
states have formally classified burglary in a dwelling as
residential burglary. See Ark. Code Ann. 5-39-201 (Michie
1997); 720 Ill. Comp. Stat. 5/19-3 (West Supp. 2002); Wash. Rev.
Code Ann. 9A.52.025 (West 2000).
13 See Pistro v. State, 590 P.2d 884, 887 & n.10 (Alaska
1979).
14 Cf. Fairbanks N. Star Borough Assessors Office v.
Golden Heart Utils, Inc., 13 P.3d 263, 269 (Alaska 2000) (noting
that a leasehold is a tenants possessory estate in land or
premises).
15 See AMC 21.40.040-.060.
16 State, Dept of Revenue v. Debenham Elec. Supply Co.,
612 P.2d 1001, 1002 (Alaska 1980).
17 Websters New World Dictionary 1142 (3d coll. ed. 1988).
The Anchorage zoning ordinances define residential as activity
involving the occupation of buildings for living, cooking,
sleeping and recreation. AMC 21.35.020.
18 Cf. Cheely v. State, 850 P.2d 653, 658-63 (Alaska App.
1993).
19 See Alaska R. Crim. P. 31(c).
20 See McGahan v. State, 606 P.2d 396, 397-98 (Alaska
1980).
