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Timothy v. State (04/30/2004) ap-1928
Timothy v. State (04/30/2004) ap-1928
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
HORACE TIMOTHY JR., )
) Court of Appeals No.
A-8723
Appellant, )
Trial Court No. 3AN-02-6739 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1928 April 30, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Sharon A. S. Illsley, Assistant District
Attorney, Leonard M. Linton, Jr., District
Attorney, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case requires us to clarify the law of burglary by
interpreting an ambiguity in our criminal codes definition of
building. In Alaska, burglary is defined as entering or
remaining unlawfully in a building with the intention of
committing a crime in the building.1 AS 11.81.900(b)(4) declares
that the term building includes not only its usual meaning but
also any propelled vehicle or structure adapted for overnight
accommodation of persons or for carrying on business. The
question is whether the adjectival clause, adapted for overnight
accommodation of persons or for carrying on business, applies to
both propelled vehicles and structures or, instead, applies only
to structures.
We have examined the Alaska drafters commentary to this
definition. We have also researched the law of Oregon, because
Oregon Revised Statutes 164.205(1) is the source of our
definition of building. Based on our research, we conclude that
the phrase adapted for overnight accommodation of persons or for
carrying on business applies to both propelled vehicles and
structures. Thus, unlawful entry of a propelled vehicle with
intent to commit a crime in that vehicle constitutes the crime of
burglary only if the propelled vehicle is adapted for overnight
accommodation of persons or for carrying on business.
How this issue arose
Horace Timothy Jr. was convicted of second-
degree and third-degree assault. Because second-degree
assault is a class B felony and third-degree assault is
a class C felony,2 Timothy would be subject to
presumptive sentencing if he had prior felony
convictions.3 The State asserted and the superior
court agreed that Timothy was subject to presumptive
sentencing because he had three qualifying prior
convictions for burglary and attempted burglary in the
State of Illinois.
Timothy does not contest that he was
convicted of both burglary and attempted burglary in
Illinois in 1987, and convicted again of burglary in
Illinois in 1992. But Timothy argues that his Illinois
convictions should not count as prior convictions for
purposes of presumptive sentencing because the Illinois
definition of burglary differs significantly from
Alaskas definition of burglary.
AS 12.55.145(a)(1)(B) states that a criminal
conviction from another jurisdiction will constitute a
prior felony conviction for purposes of Alaskas
presumptive sentencing laws if the other jurisdictions
definition of the offense has elements similar to [the
elements] of a felony defined as such under Alaska law
at the time the offense was committed. Under Illinois
law, a burglary is committed
when[,] without authority[, a person]
knowingly enters or without authority remains
within a building, house-trailer, watercraft,
aircraft, motor vehicle ... , railroad car,
or any part thereof, with intent to commit
therein a felony or theft.
Illinois Statutes, chapter 720, 5/19-1. In
other words, under Illinois law, any unlawful
entry into a car or truck for the purpose of
committing a felony or a theft (in any
degree) within that motor vehicle will
constitute a burglary.
Timothy argues that the Alaska law
of burglary differs significantly from
Illinois law because, under AS
11.81.900(b)(4), a propelled vehicle (a term
that includes automobiles, vessels,
airplanes, motorcycles, snow machines, all-
terrain vehicles, sailboats, and construction
equipment4) will qualify as a building for
purposes of the law of burglary only if the
vehicle is adapted for overnight
accommodation or for carrying on business.
The State responds that Timothy has
misinterpreted the statutory definition of
building.
As explained above, AS
11.81.900(b)(4) defines building as including
any propelled vehicle or structure adapted
for overnight accommodation of persons or for
carrying on business. The State argues that
the phrase adapted for overnight
accommodation of persons or for carrying on
business modifies structure but does not
modify propelled vehicle. In other words,
the State asserts that the Alaska law of
burglary is essentially the same as Illinois
law on this point: an unlawful entry into
any propelled vehicle with the intent to
commit a crime in the vehicle constitutes
burglary.
(Under the States interpretation,
the Illinois definition of burglary would
actually be narrower than Alaskas, because
Illinois law requires proof of the defendants
intent to commit a felony or a theft, not
just any crime. However, we have previously
held that when another jurisdictions
analogous statute is stricter than Alaskas,
the two are similar for purposes of AS
12.55.145(a)(1)(B).5)
The history of AS 11.81.900(b)(4), and why we conclude
that a propelled vehicle constitutes a building
under this statute only if the vehicle is adapted
for overnight accommodation of persons or for
carrying on business
Alaskas current definition of building is
based on a draft definition proposed by the
Criminal Code Revision Subcommission in 1977 as
part of its revision of Alaskas burglary laws.
See generally, Alaska Criminal Code Revision,
Tentative Draft, Part 3 (Offenses Against
Property) (April 1977), pp. 48-58. The
Subcommission proposed the following definition of
building:
building, in addition to its usual
meaning, includes any vehicle, watercraft,
aircraft or structure adapted for overnight
accommodation of persons or for carrying on
business[.]
Id. at 51. (This same definition also
appears in Part 1 of the Tentative Draft, p.
92.)
In the commentary accompanying this
proposed definition, the Subcommission stated
that its definition of building was broad
enough to include house trailers, mobile
field offices, house boats, vessels and even
tents used as dwellings. Id. at 51-52.
This commentary tends to support
Timothys interpretation of the statute. The
Subcommissions statement that its new
definition of building would include house
trailers and house boats, as well as vessels
and ... tents used as dwellings implies that
the Subcommission intended the phrase adapted
for overnight accommodation of persons or for
carrying on business to modify all of the
preceding nouns i.e., any vehicle,
watercraft, aircraft and not just structure.
This conclusion is bolstered by
Oregon law on this subject. As we noted in
Austin v. State, 883 P.2d 992, 993 (Alaska
App. 1994), our burglary statute and its
related definitions are based on Oregon law.
In particular, our definition of building is
drawn from ORS 164.205(1), which provides
(in pertinent part):
Building, in addition to its ordinary
meaning, includes any booth, vehicle, boat,
aircraft or other structure adapted for
overnight accommodation of persons or for
carrying on business therein.
The Commentary to the Oregon
Criminal Code explains that the purpose of
this definition was to include those
structures and vehicles which typically
contain human beings for extended periods of
time, in accordance with the original and
basic rationale of the crime [of burglary]:
protection against invasion of premises
likely to terrorize occupants. Commentary,
Proposed Oregon Criminal Code (1970), 135 at
p. 143 (quoted in State v. Scott, 590 P.2d
743, 744 (Or. App. 1979)).
This Oregon commentary likewise
supports Timothys argument. The Oregon
drafters did not say that they intended to
include all vehicles within the definition of
building. Rather, they declared that their
intention was to include those ... vehicles
which typically contain human beings for
extended periods of time. This implies that
the drafters intended the phrase adapted for
overnight accommodation of persons or for
carrying on business therein to apply to all
of the nouns listed earlier in that sentence:
any booth, vehicle, boat, aircraft or other
structure.
For these reasons, we conclude that
under the definition of building codified in
AS 11.81.900(b)(4), a propelled vehicle
constitutes a building only if it is adapted
for overnight accommodation of persons or for
carrying on business.
We disavow any suggestion to the
contrary in Butts v. State, 53 P.3d 609, 616
(Alaska App. 2002).
We conclude that Timothys burglary convictions in
Illinois are not prior felony convictions for
purposes of Alaskas presumptive sentencing law
because the elements of burglary in Illinois are
not sufficiently similar to the elements of
burglary (or any other felony) in Alaska
We have now identified a substantive
difference between the Illinois definition of
burglary and the Alaska definition of burglary:
in Illinois, it is burglary to break into any
vehicle with the intent of committing a felony or
a theft in the vehicle; but in Alaska, breaking
into a vehicle with intent to commit a crime is
not burglary unless the vehicle is adapted for
overnight accommodation or for carrying on
business.
Nevertheless, there is one more question to
answer. Under AS 12.55.145(a)(1)(B), a criminal
conviction from another jurisdiction will constitute a
prior felony conviction for purposes of Alaskas
presumptive sentencing laws if the other jurisdictions
definition of the offense has elements that are similar
to the elements of a felony under Alaska law. This
statute does not require that the two crimes have the
same definition, but only that they have similar
definitions.6 It is therefore still possible to argue
that, despite the differences between Illinoiss and
Alaskas definitions of burglary, the Illinois offense
is similar enough to Alaskas definition of burglary (or
to the definition of any other felony under Alaska law)
that Timothys Illinois convictions for burglary and
attempted burglary should still qualify as prior felony
convictions for presumptive sentencing purposes. In
fact, the superior court reached that conclusion in
Timothys case.
The State argues that we already resolved
this issue against Timothy in Butts v. State. One of
the issues raised in Butts was whether the defendants
burglary conviction in Oklahoma should be deemed a
prior felony conviction under AS 12.55.145(a)(1)(B).
Butts argued that, in Alaska, burglary could be
committed only in a building, while the Oklahoma
burglary statute encompassed unlawful entries into any
room, booth, tent, railroad car, automobile, truck,
trailer, vessel, or other structure ... in which any
property is kept, or [the forcible opening of] any coin-
operated or vending machine or device.7
We rejected Buttss contention that the
Oklahoma burglary statute was significantly broader
than Alaskas because, even though the Alaska statute
refers only to buildings, the definition of building
codified in AS 11.81.900(b)(4) is quite broad:
[E]ven though the Alaska burglary
statute only apparently covers the entry into
buildings on its face, given the broad
definition of building and the broad
definition of vehicle, we conclude that the
Alaska statute criminalizes entry into almost
every building and conveyance listed in the
Oklahoma statute. ... We [thus] conclude
that the Oklahoma statute criminalizing
burglary in the second degree is sufficiently
similar to the Alaska statute criminalizing
burglary in the second degree for Buttss
Oklahoma burglary conviction to qualify as a
prior felony conviction under AS 12.55.145.
53 P.3d at 616.
We are now convinced that we were wrong when we said in
Butts that the Alaska [burglary] statute criminalizes
[unlawful] entry into almost every building and
conveyance listed in the Oklahoma statute. The
Oklahoma burglary statute, like the Illinois burglary
statute at issue in Timothys case, covers unlawful
entries into any motor vehicle while the Alaska
burglary statute covers unlawful entries into motor
vehicles only if the vehicle is adapted for overnight
accommodation of persons or for carrying on business.
Moreover, we are convinced that this is a significant
difference. Under Illinois law and Oklahoma law, the
act of unlawfully breaking into any vehicle with intent
to commit a theft (or any felony) constitutes a
burglary. By contrast, Alaskas law of burglary covers
only those comparatively few vehicles that are adapted
for overnight accommodation or for carrying on
business.
There are certain instances when theft of property from
a propelled vehicle constitutes a felony under Alaska
law regardless of the value of the property: under
AS 11.46.130(a)(4)-(5), a person commits second-degree
theft (a class C felony) if they steal safety or
survival equipment from a vessel or an aircraft. But
otherwise, breaking into a propelled vehicle and
stealing property from that vehicle constitutes second-
degree trespass and whatever degree of theft is
supported by the particular type and value of the
property stolen. See AS 11.46.330(a)(2) and AS
11.46.100.
For these reasons, we conclude that the Illinois
definition of burglary is not sufficiently similar to Alaskas
definition of burglary (or to any other felony defined under
Alaska law) to meet the test set forth in AS 12.55.145(a)(1)(B).
Therefore, Timothys Illinois convictions for burglary and
attempted burglary do not qualify as prior felony convictions for
presumptive sentencing purposes. Those convictions can not be
used to determine the applicable presumptive term of
imprisonment, nor to establish aggravator AS 12.55.155(c)(15),
which applies when a defendant has three or more prior felony
convictions.
We should point out, however, that even though Timothys
Illinois convictions can not be used as prior felony convictions
to trigger a presumptive term or to establish aggravator (c)(15),
the superior court is still entitled to take those convictions
into account when sentencing Timothy.8 We note, in particular,
that Timothys conduct underlying these Illinois convictions may
establish aggravator AS 12.55.155(c)(21), which applies when the
defendant has a criminal history of repeated instances of
[criminal] conduct ... , whether punishable as felonies or
misdemeanors, similar in nature to the offense for which the
defendant is being sentenced.
Conclusion
We VACATE Timothys sentence and remand this
case to the superior court for re-sentencing.
_______________________________
1 AS 11.46.310(a).
2 See AS 11.41.210(b) and AS 11.41.220(d), respectively.
3 See AS 12.55.125(d) and (e), respectively.
4 See AS 11.81.900(b)(49).
5 See Martin v. State, 704 P.2d 1341, 1342 (Alaska App.
1985).
6 State v. Simpson, 53 P.3d 165, 170 (Alaska App. 2002);
Borja v. State, 886 P.2d 1311, 1314 (Alaska App. 1994).
7 Okla. Stats. Title 21, 1435 (1983), quoted in Butts, 53
P.3d at 615.
8 See Scroggins v. State, 951 P.2d 442, 444 n. 2 (Alaska
App. 1998); Burnette v. Anchorage, 823 P.2d 10, 14 n. 4 (Alaska
App. 1991); Harlow v. State, 820 P.2d 307, 309 n. 2 (Alaska App.
1991); Garroutte v. State, 683 P.2d 262, 269 (Alaska App. 1984).
