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State v. Yi (02/20/2004) ap-1917

State v. Yi (02/20/2004) ap-1917

                             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


STATE OF ALASKA,              )
                              )              Court of Appeals No.
A-8430
                                             Petitioner,        )
Trial Court No. 4BE-02-190 CR
                              )
                   v.          )                        O P I N I
O N
                              )
JUNG HO YI,                   )
                              )
                                             Respondent.        )
[No. 1917 - February 20, 2004]
                              )


          Appeal  from the Superior Court, Fourth  Judi
          cial District, Bethel, Dale O. Curda, Judge.

          Appearances:  Kenneth J.  Diemer,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for Petitioner.  David Henderson, Law Offices
          of David Henderson, Bethel, for Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
          MANNHEIMER, Judge, with whom STEWART,  Judge,
          joins, concurring.


          It  is  a  misdemeanor offense to  purchase,  sell,  or

barter bear parts.1  Bethel, Alaska, is a damp community where it

is  legal to possess alcohol for ones personal use, but it  is  a

          felony offense to buy, sell, or trade alcohol.2  The defendant in

this  case, Jung Ho Yi, traded two bottles of Crown Royal Whiskey

for  a  bear  gallbladder which was offered by undercover  Alaska

State  Trooper Gary Pacolt.  Approximately three weeks later,  Yi

engaged in another similar transaction with Trooper Pacolt.  When

the State charged Yi with these criminal offenses, Yi defended on

the  ground of entrapment.  Yi contended that, although  he  knew

that   selling  of  gallbladders  or  whiskey  was  illegal,   he

reasonably   believed,   based  in  part   on   Trooper   Pacolts

representations, that a trade (or exchange of gifts) was  lawful.

Superior Court Judge Dale O. Curda found that Yi established  the

defense  of entrapment.  The State petitioned for review  and  we

granted the petition.  We now reverse Judge Curdas ruling.

          

          Factual and procedural background

           During January of 2002, Trooper Pacolt was assigned to

spend three days in Bethel as part of an undercover operation  to

apprehend persons engaged in illegal buying and selling  of  bear

gallbladders.    The  operation  was  set  up  in   response   to

information,  reported  by  the Alaska  Department  of  Fish  and

Wildlife,  that  at least one restaurant in town  had  bought  or

bartered bear gallbladders in violation of the law.  During  this

operation  Trooper  Pacolt attempted to sell  or  barter  a  bear

gallbladder in at least six different restaurants in Bethel.

          On   January  18,  Trooper  Pacolt  and  Officer  Betty

Williams, from the Quinhagak Police Department, entered the Front

Street  Cafe dressed as civilians. This restaurant was the  first

that  they  selected.  The two officers were the only patrons  in

the  restaurant  at the time.  The two officers  ordered  dinner.

Trooper  Pacolt then noticed a man, later identified as  Yi,  who

sat down to eat at a nearby table.  Yi appeared to be an employee

of the restaurant as he frequently went back into the kitchen.

          Trooper  Pacolt then engaged Yi in some small talk  for

about  five  or  ten minutes.  Most of the conversation  revolved

around the fact that both men were from Anchorage.  At this point

          Trooper Pacolt removed a bear gallbladder from his shirt pocket

and  asked Yi if he was interested in buying.  Yi responded  that

he  did  not  want  to buy it and that it was  illegal.   Trooper

Pacolt  said  no  problem, and put the gallbladder  back  in  his

pocket.   Trooper Pacolt then asked Yi if he knew where he  could

get some alcohol.

          It  is only at this point that Trooper Pacolts and  Yis

testimonies differ.  According to Trooper Pacolt, Yi  then  asked

to  see  the gallbladder again.  And, after Pacolt handed  it  to

him,  Yi  asked  Pacolt  if  he was  interested  in  trading  the

gallbladder  for  some alcohol.  Trooper Pacolt  replied  that  a

trade  would  be fine.  Trooper Pacolt testified  that  he  never

indicated  to Yi that such a trade was legal.  According  to  Yi,

after Pacolt asked where to get alcohol, he only told Pacolt that

he  had some for his own personal use.  Yi testified that Trooper

Pacolt  first  brought  up the idea of trading  alcohol  for  the

gallbladder. Yi admitted to readily agreeing to this transaction,

which  he  characterized as a gift exchange.  Yi  also  testified

that  he  got  the impression from Trooper Pacolt  that  such  an

exchange would be legal.  Yi does not claim that he knew  Trooper

Pacolt was a police officer at that time.  Officer Williams  also

testified but her testimony was not helpful in clearing up  these

conflicting accounts.

           From this point on, the facts are uncontested.  Yi had

an  employee  of  the  cafe  bring Trooper  Pacolt  a  paper  bag

containing two bottles of Crown Royal whiskey.  Yi then proceeded

to  staple  the  bag shut.  Yi also said that he  would  pay  for

Trooper Pacolts dinner as part of the deal.

          Before Trooper Pacolt left the cafe, he told Yi that he

might  have more gallbladders in the future and asked if Yi might

be  interested.  Yi said no, but stated that he might  know  some

people who would be.

          On  February 12, Trooper Pacolt returned to  the  Front

Street  Cafe  alone,  this time wearing a tape-recording  device.

Trooper  Pacolt had applied for and received a Glass3 warrant  in

          order to record his conversation with Yi.  Trooper Pacolt had

another bear gallbladder with him at this time.  Pacolt sat  down

to  have  dinner.   Yi came out, talked with him,  and  took  his

order.    Trooper  Pacolt  then  told  Yi  that  he  had  another

gallbladder  and showed it to him. He then asked  Yi  if  he  was

interested in trading again like last time.  Yi indicated that he

was  interested, this time trading three bottles of vodka for the

gallbladder.  Yi again paid for Trooper Pacolts dinner.

          The  State indicted Yi on two felony counts of sale  of

liquor without a license4 and charged him by information with two

misdemeanor counts for purchasing parts of a big game animal.5

          Yi  filed  a  motion to dismiss the indictment  on  the

ground  that  he  had  been  entrapped  by  the  police.   In  an

evidentiary hearing on the motion conducted by Judge  Curda,  Yi,

Trooper  Pacolt, and Officer Williams testified.   Following  the

hearing, Judge Curda ruled that Yi had established the defense of

entrapment.

          Judge  Curda specifically did not resolve the  conflict

in  the  testimony about whether it was Trooper Pacolt or Yi  who

initiated the plan to trade the bear gallbladder for alcohol.  He

concluded  that  it  was  unnecessary  to  resolve  this  factual

conflict.   Rather, Judge Curda concluded that, from an objective

point  of  view, a reasonable person would not have believed  the

trade  of alcohol for bear gallbladders was illegal.  He  pointed

out that Yi initially refused to purchase the gallbladder.  Judge

Curda   noted  that Trooper Pacolt was the person who  originally

brought  up the subject of obtaining alcohol.  He concluded  that

Yi  was not a bootlegger and that, if Trooper Pacolt had asked to

purchase  the  alcohol,  Yi  would  have  refused.   Judge  Curda

concluded that Yi only committed the offense because Yi  believed

that the transaction was legal: [W]hile Yi acknowledges [that] he

was  aware  [that] selling or buying either alcohol or  the  bear

gallbladder  would be illegal, he believed [that] an  even  trade

would  not be illegal.  The court finds reasonable people in  the

State  of Alaska, and specifically in Bethel, would agree.  Judge

          Curda concluded that, because of Trooper Pacolts persistence in

pursuing  Yi, and because of Yis confusion over the  legality  of

making  a trade, Trooper Pacolts conduct fell below an acceptable

standard for the fair and honorable administration of justice.



          The law of entrapment

          Alaskas entrapment statute is codified at AS 11.81.450:

          In  any prosecution for an offense, it is  an
          affirmative defense that, in order to  obtain
          evidence  of the commission of an offense,  a
          public  law enforcement official or a  person
          working  in  cooperation  with  the  official
          induced  the defendant to commit the  offense
          by  persuasion  or  inducement  as  would  be
          effective  to  persuade  an  average  person,
          other  than one who is ready and willing,  to
          commit the offense.  Inducement or persuasion
          which  would induce only a person engaged  in
          an  habitual  course of unlawful conduct  for
          gain    or   profit   does   not   constitute
          entrapment.

          Entrapment  is a defense to criminal charges,  and  the
purpose  of  the  defense is to deter law enforcement  activities
that  go  beyond the bounds of sound public policy.6  Because  AS
11.81.450  defines  entrapment  as  an  affirmative  defense,   a
defendant  bears the burden of establishing it by a preponderance
of the evidence.7  Entrapment is an issue for the court to decide
rather  than  the  jury.8 Alaska employs an  objective  test  for
entrapment.9  This means that the court considers the  nature  of
the   police   activity  involved,  without  reference   to   the
predisposition of the defendant.10
          We have previously stated:
          In   order  to  prevail  on  [an  entrapment]
          defense, [the defendant is] required to prove
          that the police employed fundamentally unfair
          or   dishonorable  practices  calculated   to
          induce   someone  to  commit  the  crime   in
          question  so  that he might be  arrested  and
          prosecuted  for the offense.  ...  And  while
          [the  defendant does] not need  to  negate  a
          predisposition to engage in similar  conduct,
          [the   defendant   must   show]   that    the
          dishonorable   police   practices   were    a
          substantial factor in inducing him to  commit
          the charged offenses  that his commission  of
          the   offenses  was  the  direct  result   of
          inducement by law enforcement officials.[11]

          We  conclude that Judge Curda erred in concluding  that
Yi established the defense of entrapment.  In his findings, Judge
Curda  was  equivocal in condemning the police conduct.   At  one
point,  he  stated that he did not believe that  Trooper  Pacolts
actions  were  egregious or that it was the  troopers  intent  to
entrap  Yi  into  committing  a crime.   Looking  objectively  at
Trooper  Pacolts  conduct, the evidence does not  show  that  the
trooper engaged in fundamentally unfair or dishonorable practices
which  were calculated to induce someone to commit a crime, other
than  a  person  who was willing.  Judge Curda  did  not  resolve
whether Trooper Pacolt or Yi first suggested a trade of the  bear
gallbladder  for  the alcohol.  Even if Trooper Pacolt  suggested
the   trade,  this  conduct,  looked  at  objectively,  does  not
constitute  a  fundamentally  unfair  or  dishonorable   practice
calculated to induce an innocent person to commit a crime.   Even
if  Trooper Pacolt had suggested the exchange and even if he  had
suggested  that it would be lawful to trade the alcohol  for  the
bear gallbladder, it would be unreasonable for Yi to rely on this
representation.  As Yi admitted, he had no suspicion that Trooper
Pacolt  was a police officer or was anyone other than an ordinary
visitor to Bethel.
          Judge  Curdas  finding that the troopers  actions  were
fundamentally  unfair  and that they induced  Yi  to  commit  the
offenses appears to rest on his finding that reasonable people in
the State of Alaska, and specifically in Bethel, would agree that
trading the alcohol for the bear gallbladder would be legal,  and
therefore  Yi was reasonable in concluding that his actions  were
legal.   Other  than Yis statement that he thought that  a  trade
would  be  legal,  there is no support for this  finding  in  the
record.  And, looked at objectively, this finding does not appear
to  be  reasonable.   Yi conceded that he knew  that  buying  the
gallbladder would be illegal.  He also conceded that he knew that
selling alcohol would be illegal.  It does not seem reasonable to
conclude  that, by merely eliminating money from the  transaction
and  trading  alcohol for the bear gallbladder,  the  transaction
          would be legal.  If this were the rule, a person could legally
sell alcohol or sell a bear gallbladder by merely structuring the
transaction  as  a trade.  By engaging in two illegal  acts,  the
parties could make the transaction legal.
          Judge   Curdas  finding  that  Yi  was  reasonable   in
concluding that he could legally trade the alcohol for  the  bear
gallbladder  was  fundamental to Judge Curdas ruling.   Since  we
conclude that the finding is clearly erroneous (because it is not
supported  by the record), we conclude that Judge Curdas  finding
that Yi was entrapped was an abuse of discretion.  We accordingly
reverse  Judge Curdas ruling that Yi established the  defense  of
entrapment.
          REVERSED.
MANNHEIMER, Judge, with whom STEWART, Judge, joins, concurring.


          I  agree  that there was no entrapment here.   I  write

separately to address one aspect of the superior courts decision.

          On  page 6 of its written decision, the superior  court

asserted  that Yi was entrapped  into committing the  offense  of

bootlegging  because, even though people know that  the  sale  of

alcohol  is  illegal  in the dry and damp areas  of  this  state,

reasonable  people  in the State of Alaska, and  specifically  in

Bethel,  would nevertheless mistakenly believe that  it  remained

legal  for them to trade alcohol for goods (as opposed to trading

alcohol for money).

          The  superior  court made no finding that  the  trooper

misrepresented the legality of such a trade to Yi.  Instead,  the

superior  court  appears to have adopted the  position  that  any

widespread  community mistake concerning the law will  support  a

claim  of  entrapment,  even when law  enforcement  officials  do

nothing  to  encourage the defendant to adopt or rely  upon  this

mistaken view of the law.

          Alaska has adopted the objective theory of entrapment.1

Under  the  objective theory of entrapment, the  purpose  of  the

defense  is  to  identify  instances in  which  the  police  used

dishonorable or unacceptable means to induce someone to commit  a

crime,   instances  in  which  police  conduct  falls  below   an

acceptable standard for the fair and honorable administration  of

justice.2

          Thus, under AS 11.81.450, entrapment is defined as  law

enforcement  conduct  persuasion or inducement by law enforcement

officers  or those working in cooperation with them.   Under  the

statute,  police-instigated persuasion or inducement  constitutes

entrapment  if  it  would  be effective to  persuade  an  average

person[, who was otherwise not] ready and willing, to commit  the

offense.

          Here, the superior court appears to have found that  Yi

and  many other members of the Bethel community were indeed ready

and  willing  to  barter alcohol for goods, with  essentially  no

          persuasion or inducement other than a simple request or

suggestion, because they all shared the same mistaken belief that

this  conduct  was  legal.  I have no idea whether  the  superior

courts  assertion  is  true.   But  even  if  it  is,  widespread

misunderstanding  of  the  law will  not  support  a  defense  of

entrapment,    any   more   than   an    individual    defendants

misunderstanding of the law will support a defense of entrapment,

when  law  enforcement officers have done nothing to foster  this

misunderstanding or to persuade the defendant to rely  upon  this

misunderstanding.





_______________________________
     1  5 Alaska Administrative Code (AAC) 92.200(b)(2) (A person
may  not  purchase, sell, [or] barter ...  any part  of  a  bear,
except  an  article of handicraft made from the fur  of  a  black
bear,  an unsealed marten ... or an unsealed beaver, land  otter,
lynx, wolf, or wolverine.).

2 See AS 16.05.920(a); AS 16.05.925(a); 5 AAC 92.200(b)(2).

3 State v. Glass, 583 P.2d 872 (Alaska 1978).

4 AS 04.11.010(a).

     5 5 AAC 92.200(b)(2).

6  Evans  v.  State,  550  P.2d 830,  843-45,  845  n.51  (Alaska
1976).

     7  AS  11.81.900(b)(1); Bachlet v. State, 941 P.2d 200,  206
(Alaska App. 1997).

     8 Folsom v. State, 734 P.2d 1015, 1017 (Alaska App. 1987).

     9 Grossman v. State, 57 P.2d 226, 229 (Alaska 1969).

     10   21 Am. Jur. 2d Criminal Law  265 (1998).

11    Washington  v.  State,  755  P.2d  401,  405  (Alaska  App.
1988)  (quoting  Anchorage  v. Flanagan,  649  P.2d  957,  961-62
(Alaska App. 1982)).

1   Pascu   v.   State,  577  P.2d  1064,  1067  (Alaska   1978);
Grossman  v.  State, 457 P.2d 226, 229 (Alaska 1969);  Jacobs  v.
State,  953  P.2d  527, 531 (Alaska App.  1998).   See  also  the
legislative  commentary to AS 11.81.450,  found  in  1978  Senate
Journal, Supp. No. 47 (June 12), p. 138.

     2  Jacobs  v.  State, 953 P.2d 527, 531 (Alaska App.  1998),
quoting Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978).