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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).
