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Morton v. State (5/2/2003) ap-1872
Morton v. State (5/2/2003) ap-1872
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
BRADFORD L. MORTON, )
) Court of Appeals No. A-
8210
Appellant, ) Trial
Court No. 4FA-S01-1569 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1872 - May 2, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph Beistline,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Barbara J. Ritchie, Acting Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury convicted Bradford L. Morton of burglary in the
second degree,1 theft in the third degree,2 criminal mischief in
the third degree,3 and possession of burglary tools.4 Morton was
convicted based on evidence that he had broken into a gift shop
and stolen jewelry.
Morton appeals his conviction for possession of
burglary tools, contending that he could not be convicted of that
offense for possession of an ordinary screwdriver and rubber
mallet, neither of which had been adapted or designed for use in
committing a burglary. The State has confessed error. We accept
the States concession and order the superior court, on remand, to
enter a judgment of acquittal on Mortons charge that he possessed
burglary tools.
Alaska Statute 11.46.315 criminalizes the possession of
burglary tools. A person commits this crime if he possesses the
burglary tool with intent to use or permit use of the tool in the
commission of ... burglary in any degree. The statute defines
the term burglary tools as:
(1) nitroglycerine, dynamite, or any other
tool, instrument, or device adapted or
designed for use in committing a crime
referred to in (a)(1)-(3) of this section; or
(2) any acetylene torch, electric arc,
burning bar, thermal lance, oxygen lance, or
other similar device capable of burning
through steel, concrete, or other solid
material.[5]
Because Morton did not possess explosives or a burning
device capable of penetrating steel or other solid material,
Morton could have only violated the statute if his tools were
adapted or designed for use in committing a burglary.
The legislative commentary to AS 11.46.315 expressly
states the legislatures intent to not criminalize the possession
of ordinary tools, even if those tools were used to commit a
burglary. The commentary to AS 11.46.315 states:
[U]nless the defendant possessed
nitroglycerine, dynamite, an acetylene torch,
electric arc, burning bar, thermal lance,
oxygen lance or other similar device capable
of burning through steel, concrete, or other
solid material, the state must establish that
the tool was adapted or designed for use in
committing one of the three target crimes.
That the tool was commonly used for
committing the offense is not sufficient.
This exclusion is necessary to insure that
possession of items such as screwdrivers,
toothpicks or rubber gloves will not give
rise to prosecution under the statute.[6]
The State concedes that Morton possessed an ordinary
screwdriver and an ordinary rubber mallet that had not been
altered in any manner and that both items were not designed to
commit a burglary. He therefore did not commit this offense.
We accordingly direct the superior court, on remand, to
issue a judgment of acquittal on the charge that Morton possessed
burglary tools.
Mortons conviction for possession of burglary tools is
VACATED. On remand the superior court shall enter a judgment of
acquittal.
_______________________________
1 AS 11.46.310(a).
2 AS 11.46.140(a).
3 AS 11.46.482(a).
4 AS 11.46.315(a).
5 AS 11.46.315(b)(1)-(2).
6 Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 105, 1978 Senate Journal 1399.
