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Lee v. Municipality of Anchorage (5/23/2003) ap-1877
Lee v. Municipality of Anchorage (5/23/2003) ap-1877
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
KYONG SUK LEE, )
) Court of Appeals No. A-
8205
Appellant, ) Trial Court
No. 3AN-01-3797 CR
)
v. ) O P I N I
O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
[No. 1877 - May 23, 2003]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Stephanie Rhoades,
Judge.
Appearances: Andrew L. Josephson, Josephson
& Associates, Anchorage, for Appellant. C.
Levi Martin, Assistant Municipal Prosecutor,
and William A. Greene, Municipal Attorney,
Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
This case presents the question of what culpable mental
states the Municipality must prove when it charges a person with
maintaining a place of prostitution under Section 8.65.060 of the
Anchorage Municipal Code (AMC). Kyong Suk Lee was convicted of
two separate violations of AMC 8.65.060(A), which provides that
it is unlawful for any person to knowingly maintain or operate a
place, building, structure or part thereof, vehicle, mobile home,
or other conveyance for the purpose of prostitution or
assignation. Lee claims that under this ordinance, the
Municipality not only had to prove that she knowingly maintained
a place where prostitution occurred, but that she did so with the
intent that the place be used for prostitution. For the reasons
set out below, we agree.
Lee also claims that with regard to the maintaining
charge, the district court should have instructed the jury on a
lesser-included offense derived from AMC 10.40.050, the section
of the municipal code that pertains to the licensing and
regulating of adult-oriented service establishments. Lee
presented this argument to District Court Judge Stephanie
Rhoades, who concluded that this section of the municipal code
did not apply. We agree with Judge Rhoades.
Facts
Lees convictions arose from two undercover operations
conducted by the Anchorage Police Department in January 2001 and
May 2001. At both times, Lee was the manager of Fantasy Club, an
escort service in Anchorage. In January 2001, and again in May
2001, the Anchorage Police Departments Special Assignment Unit
conducted two undercover operations to determine if prostitution
was occurring at Fantasy Club. Both times, the units undercover
officers found escorts engaging in prostitution.1
As a result of these undercover operations, Lee was
charged in two separate cases for violating AMC 8.65.060.
Additionally, in the instant case, Lee was charged with violating
the release conditions imposed after her January 2001 arrest.2
Lee had a separate trial for each incident. Her first trial
began in late October 2001. She was tried by a jury, who found
her guilty as charged for the January 2001 incident.
Approximately a week after her jury trial, Lees second trial
began. In the second trial, she waived her right to a jury, and
the judge found her guilty of both charges relating to the May
2001 incident. Judge Rhoades presided over both trials.
Discussion
The mental states of AMC 8.65.060
As set out above, Lee was charged with knowingly
maintain[ing] or operat[ing] a place, building, structure or part
thereof ... for the purpose of prostitution or assignation.3 At
her second trial, Lee argued that this ordinance has two mental
states, knowingly and intentionally. Judge Rhoades, however,
applied only the knowingly mental state. On appeal, Lee claims
that the language for the purpose connotes specific intent.
Hence, she argues that not only did the Municipality have to
prove that she knowingly maintained a place where prostitution
occurred, but the Municipality also had to prove that she did so
with the intent that prostitution take place there.
We conclude that Lee is correct. Although we have not
had the occasion to construe this ordinance before, in Dawson v.
State4 we construed a similar state statute. Dawson required us
to determine the mental state required by AS 11.71.040(a)(5),
Alaskas crack-house statute. In pertinent part, this statute
makes it an offense for a person to knowingly keep[] or
maintain[] any store, shop, warehouse, dwelling, building,
vehicle, boat, aircraft, or other structure or place that is used
for keeping or distributing controlled substances in violation of
a felony offense under this chapter[.]5 We concluded that this
statute required that a defendant act knowingly both with respect
to the proscribed conduct ... and with respect to the existence
of the illegal use itself.6
In reaching this conclusion we relied both on related
federal case law and on the language in the statute.
Importantly, when analyzing this statute, we illustrated the
difference in mental states between two subsections of a federal
drug statute, one of which has for the purpose language and one
of which does not. We pointed out that the subsection that
applies when the accused knowingly open[s] or maintain[s] any
place for the purpose of illegal drug-related activity is
interpreted to require that the accused act knowingly with
respect to the conduct of maintaining, and intentionally with
respect to the illegal use of the premises opened or maintained.7
We noted that when interpreting the statutory language, federal
courts have held that there are two mental elements, knowledge
and purpose.8
This result is supported by Professor LaFave, who
writes that the modern approach, adopted by the Model Penal Code,
is to use the word purpose to mean intent.9 According to
Professor LaFave, under this approach, as to the results of ones
conduct, the Code provides that one acts purposely when it is his
conscious object ... to cause such a result, while one acts
knowingly if he is aware that it is practically certain that his
conduct will cause such a result.10
Additionally, when discussing common law accomplice
liability, Professor LaFave recognizes that an alleged
accomplices actions often fall short of criminal. He states that
there are many ... instances in which the alleged accomplices
actions will qualify only as knowing assistance, in that he is
lending assistance or encouragement to a criminal scheme toward
which he is indifferent.11 Professor LaFave provides as an
example of this a lessor [who] rents with knowledge that the
premises will be used to establish a bordello.12 Professor
LaFave points out that the majority view which he notes has been
adopted under the Model Penal Code13 holds that traditional
definitions of accomplice liability demand that [the accessory]
in some sort associate himself with the venture, that he
participate in it as in something that he wishes to bring about,
that he seek by his action to make it succeed.14 Hence, under
the majority view of common law accomplice liability, the
Municipality would have to prove that Lee knowingly maintained a
place where prostitution occurred with the intent that the place
be used for prostitution.
When courts are presented with a question as to the
proper construction of a statute or ordinance that potentially
modifies the common law, the normal rule of interpretation is
that such statutes are construed so as to preserve the
pre-existing common law unless the legislature has clearly
indicated its purpose to change that law.15 Here, the record
before us holds no indication that the Anchorage Assembly
intended to change the mens rea requirements of the offense of
maintaining a place of prostitution from the common law.
Considering our analysis in Dawson, Professor LaFaves
discussion on mental states, and the lack of any evidence before
us that the assembly intended to change the common law when it
codified this offense, we conclude that under AMC 8.65.060 the
Municipality has to show that a defendant acted knowingly with
respect to the conduct of maintaining or operating a place of
prostitution and that a defendant acted intentionally with
respect to the illegal use that is, prostitution of the
premises maintained.
Judge Rhoadess verdict demonstrates that she applied
only the knowingly standard in this case. This was error.
However, because Lee was tried without a jury, a reversal and
retrial are not necessary. Rather, a remand will allow Judge
Rhoades to apply the required standard and to reconsider the
verdict in light of our decision on this issue.16
Lees argument concerning the lesser-included offense
Lee also claims that Judge Rhoades should have
considered convicting her of a lesser-included offense under AMC
10.40.050, the section of the municipal code pertaining to the
licensing and regulating of adult-oriented service
establishments. Lee argues that AMC 10.40.050 makes it a
violation to negligently supervise the staff of an adult-oriented
service establishment. In both trials, she proposed a lesser-
included offense that included the following elements: Lee with
negligence failed to supervise the conduct of an employee of the
escort service and the employee had committed an act, or had
agreed to engage in an act, of prostitution at Fantasy Club.
Judge Rhoades rejected this lesser-included offense in
both trials. She found, among other things, that AMC 10.40.050
had no real relationship to criminalizing maintaining a place of
prostitution. We agree with Judge Rhoades. The only section of
AMC 10.40.050 that prohibits sexual activity AMC
10.40.050(J)(1)(c) does not apply to escort services. Rather,
this section applies only to adult-orientated establishments that
provide any booth, room or cubicle for the private viewing of any
adult entertainment.17 Escort services, as defined in the
ordinance, do not provide this type of service. Instead, an
escort service is a person or business that furnishes, offers to
furnish or advertises to furnish escorts for a fee, tip or other
consideration[.]18 Additionally, AMC 10.40.050 does not apply in
Lees case because it does not prohibit or otherwise regulate
prostitution. Accordingly, we conclude that Judge Rhoades
properly rejected Lees requested lesser-included offense.
Conclusion
We AFFIRM the district courts rejection of Lees
requested lesser-included offense. However, we REMAND this case
for Judge Rhoades to reconsider the verdict for maintaining a
place of prostitution in light of our decision that the ordinance
has two mental states, knowing and intentional. If necessary,
Judge Rhoades shall also reconsider Lees conviction for violating
release conditions. We retain jurisdiction.
The district court shall make its findings and forward
them to this court within 60 days of our remand. If Lee is
acquitted, we will close this appeal. If Lee is again convicted,
then the parties shall file supplemental memoranda addressing the
district courts findings. Lee shall file her memorandum 15 days
after the district court forwards its findings to this court.
The Municipality shall file its memorandum 15 days after Lee
files hers. Lee may not file a reply. The page limits of
Appellate Rule 217 shall apply.
_______________________________
1 See AMC 8.65.020-030.
2 AMC 8.30.110(A).
3 AMC 8.65.060(A) (emphasis added).
4 894 P.2d 672 (Alaska App. 1995).
5 Id. at 674.
6 Id. at 678.
7 Id. at 678 n.7 (emphasis in original) (citation omitted).
8 Id. (citation omitted).
9 See 1 Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law 3.5, at 305-06 (1986) (citations
omitted).
10 Id. at 306.
11 2 LaFave, 6.7, at 146.
12 Id. (quoting Model Penal Code 2.06, Comment at 316
(1985)).
13 See id. at 148 (The Code thus limits accomplice
liability to instances in which there exists the purpose of
promoting or facilitating the commission of the offense) (citing
Model Penal Code, 2.06(3)(a)).
14 Id. at 146-47 (quoting United States v. Peoni, 100 F.2d
401, 402 (2d Cir. 1938)).
15 State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.
1998).
16 See, e.g., Colgan v. State, 711 P.2d 533, 536 (Alaska
App. 1985).
17 AMC 10.40.050(J)(1).
18 AMC 10.40.050(A).
