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Howard v. State (11/26/2004) ap-1960
Howard v. State (11/26/2004) ap-1960
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
JARSIS JAMAR HOWARD, )
) Court of Appeals No.
A-8491
Appellant, )
Trial Court No. 3KN-01-1229 CR.
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1960 - November 26, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Jarsis Jamar Howard appeals his convictions for forgery
in the second degree and resisting arrest. The State charged
Howard with forgery for identifying himself as Omari S. Russell
and signing Russells name on a traffic ticket for speeding.
Howard argues that the State did not establish the element of the
offense of forgery that Howard had an intent to defraud Russell.
We conclude that the State did prove this element. On the
resisting arrest charge, the State presented evidence that Howard
ran away from a state trooper and then hid in the woods. The
States only evidence that the trooper had physical contact with
Howard was that he grabbed a little piece of Howards clothing as
Howard ran from him. Howard argues that the State never proved
that Howard used force in resisting arrest and therefore the
State did not present sufficient evidence of this charge. We
agree with Howard that the State did not present sufficient
evidence that he committed the crime of resisting arrest.
Factual background
On September 1, 2002 Alaska State Trooper Victor Aye
observed a car traveling on the Sterling Highway. He estimated
that the car was going over 100 miles per hour in a fifty-five
mile per hour zone. Trooper Aye saw the car slow down because it
was closing in on other cars. Trooper Aye activated his radar
which clocked the car at 98 miles per hour. Trooper Aye pulled
the car over and asked the driver for identification. The
driver, later determined to be Jarsis Jamar Howard, claimed to
have no identification with him. Howard claimed that his name
was Omari S. Russell. Trooper Aye checked with the dispatcher to
get a physical description of Russell. The physical description
for Russell did not seem to match it indicated that Russell was
135 pounds, and Howard appeared to weigh much more than that.
When Trooper Aye asked Howard about this, Howard claimed that he
had recently gained weight. Trooper Aye then gave Howard a
traffic citation for speeding. Howard signed the citation with
Russells name.
After Howard had left the scene, Trooper Aye became
suspicious that Howard had used a false name. He again contacted
the dispatcher and discovered that, while Omari Russell was a
real person living in Anchorage, the date of birth that Howard
gave was one year off from Russells actual date of birth. As a
result of this discovery, Trooper Aye had the dispatcher put out
a request to stop Howards car, so that he could determine Howards
true identity.
Alaska State Trooper Paul Randall stopped Howards car.
During the stop the dispatcher told Trooper Randall that the cars
owner claimed to have loaned it to Jamar Howard. The dispatcher
also reported that Howard had no valid drivers license and that
there was an outstanding warrant for his arrest. When Trooper
Randall asked Howard to identify himself, Howard again claimed to
be Russell. When Trooper Randall confronted Howard with the fact
that he knew his true identity, Howard continued to insist that
he was Russell.
At this point Trooper Randall decided to arrest Howard.
He ordered Howard to turn around and place his hands behind his
back. Trooper Randall then took out his handcuffs and reached
for Howards arm, but Howard turned and ran into the woods.
Trooper Randall pursued Howard but did not follow him past the
edge of the brush, explaining that he was concerned about the
potential for a violent encounter.
Mark Bellinger, an off-duty correctional officer who
happened to live next door to where Howard was hiding, chased
Howard into the woods and apprehended him. Once restrained,
Howard continued to insist that his name was Omari Russell.
The State indicted Howard for second-degree forgery.1
The State also charged Howard by information with giving false
information to a police officer,2 resisting arrest,3 and driving
without a valid license.4
Howards case went to trial before Superior Court Judge
Jonathan H. Link. The jury convicted Howard of all four charges.
The State presented sufficient evidence to
allow the jury to convict Howard of forgery
in the second degree
In order to convict Howard of forgery in the second
degree the State had to demonstrate that: (1) Howard falsely
made, completed, or altered a written instrument, (2) the
instrument was, or purported to be, a public record, and (3)
Howard had an intent to defraud.5 Howard appeals only the
sufficiency of the States evidence of his intent to defraud.
Intent to defraud is defined by statute as an intent to
injure someones interest which has value or an intent to use
deception.6 Judge Link only instructed the jury on the intent to
injure someones interest which has value so we will only use this
theory in analyzing the case.
Howard first points out that Judge Link instructed the
jury that to find Howard guilty they had to conclude that he
intended to defraud Omari S. Russell by depriving him of his
drivers license and/or permanent fund dividend. Howard first
contends that, under the jury instructions, in order to find
intent to defraud, the jury had to find that he had an intent to
injure someones interest which has value. He contends that the
forgery statute criminalizes situations where the defendant
attempts to defraud another person of a valuable property
interest. He argues there was no evidence that he obtained any
valuable property from Russell.
The Alaska statutes define intent to defraud as an
intent to injure someones interest which has value ... If the
State proved that Howard intended to injure Omaris interest in
his drivers license and/or permanent fund dividend, this conduct
would appear to fall within the statute. The statute does not
require that Howard needed to intend to obtain anything of value
from Russell. Furthermore, both Russells interest in his
drivers license and his interest in his permanent fund dividend
are interests which have value.
We have found several cases where state courts have
upheld forgery convictions where the defendant signed a false
name to a traffic citation.7 We have not located any cases where
a court has held that the States forgery statute was inapplicable
to signing a false name to a traffic citation. Therefore, the
language of the Alaska forgery statute including the definition
of intent to defraud and case law support the conclusion that the
State could properly charge and convict Howard of forgery for
falsely signing his name on the traffic citation.
Howard contends that the State did not show that he had
any intent to harm Russell. He argues that his only intent was
to avoid getting a traffic ticket. AS 11.81.900(a)(1) provides
that a person acts intentionally when his conscious objective is
to cause that result; when intentionally causing a particular
result is an element of the offense, that intent need not be the
persons only objective[.] Judge Link instructed the jury on the
definition of intentionally. Therefore, under the law and the
jury instruction, even if Howards primary intent was to avoid the
consequences of getting a traffic ticket, the jury could also
find that he had an intent to harm Russell.
It appears that, to convict a defendant of forgery, the
State does not have to allege that any particular person or
corporation was defrauded. It is sufficient for the State to
show that the defendant had an intent to defraud any person or
corporation . . . .8 (In the other state cases where the
defendant was convicted of forgery for signing a false name to a
traffic ticket, the courts have observed that the defendants
intent had been shown because he intended to defraud the
arresting officers or the courts.9 ) Therefore, to charge Howard
with forgery, the State only had to allege that Howard signed the
traffic ticket with the intent to defraud. The State did not
have to specify whom Howard intended to defraud as long as it
proved he had an intent to defraud any person or corporation
. . . . But the jury instructions which Judge Link gave
required more. Under the jury instructions the State had to
prove that Howard intended to defraud Omari S. Russell by
depriving him of his drivers license and/or permanent fund
dividend. We will assume, arguendo, that the State had to
present sufficient evidence to meet the jury instruction.
The evidence which the State presented at trial was
sufficient for the jury to conclude that Howard knew Russell.
He gave Russells name, including his middle initial. He knew
Russells month and day of birth he only missed getting the birth
date correct by missing the date of Russells birth by one year.
Trooper Aye testified that he had cited Howard for going 98 miles
per hour in a 55 mile per hour zone. According to the trooper,
Russell faced a mandatory court appearance. If Russell failed
to appear, a warrant would be issued for his arrest. In
addition, Russell would get six points against his drivers
license. According to the trooper, Russell faced possible action
against his drivers license, a substantial fine, and garnishment
of his permanent fund dividend. By signing Russells name to the
traffic ticket, Howard attempted to transfer all of these
potential liabilities to Russell.
Howard argues that there was no evidence that he would
be aware that these penalties might befall Russell. But there
was evidence that Howards own license had been revoked. It
appears reasonable for the jury to infer that Howard had some
knowledge of the potential penalties which he attempted to
transfer to Russell. In conclusion, the jury instructions
required the State to prove much more than was necessary to
convict Howard of forgery. But the State presented sufficient
evidence for the jury to find that Howard intended to defraud
Omari S. Russell by depriving him of his drivers license and/or
permanent fund dividend.
Howard argues that his offense would be more
appropriately prosecuted as the misdemeanor offense of giving
false information to a peace officer with the intent of
implicating another in an offense or for giving false information
about his identity while being issued a citation.10 But, as we
have previously pointed out, courts have unanimously held that
signing a false signature on a traffic citation can properly be
charged as forgery. When Howard gave Trooper Aye false
information that he was Omari S. Russell, he violated the false
information or report statute. By signing Russells name to the
traffic ticket with the intent to defraud, Howard committed the
additional offense of forgery. Therefore, the State could
properly charge Howard with that offense. We accordingly
conclude that the State could properly charge and convict Howard
of forgery and that the State presented sufficient evidence for a
jury to convict Howard of that offense.
The State did not present sufficient evidence
to support Howards conviction for resisting
arrest
In order to convict Howard of resisting arrest the
State had to demonstrate that, with the intent of preventing his
arrest, he resisted personal arrest by force.11 Normally, force
is defined as any bodily impact, restraint, or confinement or the
threat of imminent bodily impact, restraint, or confinement.12
The States first theory of resisting arrest was that
Howard resisted arrest after Trooper Randall ordered Howard to
turn around and place his hands behind his back. Howard turned
and ran into the woods. Howard contends that he did not commit
the crime of resisting arrest because Trooper Randall never
touched him. He argues that in the absence of physical contact,
he did not use any force against Trooper Randall. But, we are to
look at the evidence in the light most favorable to the State in
determining whether the State presented sufficient evidence to
uphold the conviction.13
Trooper Randall testified that, while he did not
actually get a grip on Howards arm when he reached to place him
in handcuffs, he did get a hold of a little piece of Howards
jacket or cuff while Howard was running away. Therefore, there
was evidence that Trooper Randall had some physical contact with
Howard as Howard was running away. The question next becomes
whether this contact constituted force under the resisting arrest
statute. Answering this question requires us to construe the
Alaska resisting arrest statute, including the definition of
force. In interpreting a statute, we are to consider the
language of the statute, the legislative history, and the purpose
of the statute. The goal of statutory construction is to give
effect to the legislatures intent, with due regard for the
meaning the statutory language conveys to others.14
We have not found any Alaska cases which help us to
interpret the resisting arrest statute or any legislative
commentary. When we look at the legislative history of the
Alaska resisting arrest statute, we discover that it was derived
from the Hawaii statute.15 Hawaii Statute 710-1026 reads as
follows:
(1) A person commits the offense of resisting
arrest if the person intentionally prevents a
law enforcement officer acting under color of
the law enforcement officers official
authority from effecting an arrest by:
(a) Using or threatening to use physical
force against the law enforcement
officer or another; or
(b) Using any other means creating a
substantial risk of causing bodily
injury to the law enforcement officer or
another.
The Hawaii statute appears to be similar to the Alaska statute,
except that our statute also prohibits any act of criminal
mischief intended to impede an arrest.16 Where we have adopted a
statute from another state, it is reasonable to infer that the
legislature intended to adopt constructions previously placed
upon the statute by the courts of that state.17 However, we
have not found any Hawaii decisions that interpret the Hawaii
statute with facts similar to those before us in this case. But
there is a commentary to the Hawaii statute. The Hawaii Penal
Code became effective on January 1, 1973. According to the penal
code the commentary was prepared by the Judicial Counsel of
Hawaii and by the legislative counsel and was edited by the
revisor of statutes.18 The commentary is to be used as an aid
in understanding the code but not as evidence of legislative
intent.19 The commentary to the Hawaii statute provides some
insight:
Resisting arrest is one of the commonest
forms of obstructing government operation.
The Code deals specifically with resisting
arrest out of a desire to confine the offense
to forcible resistance that involves some
substantial danger to the person. Mere non-
submission ought not to be an offense. One
who runs away from an arresting officer or
who makes an effort to shake off the officers
detaining arm might be said to obstruct the
officer physically, but this type of evasion
or minor scuffling is not unusual in an
arrest, nor would it be desirable to make it
a criminal offense to flee arrest. In this
case the proper social course is to authorize
police pursuit and use of reasonable force to
effect the arrest. If the actor is captured,
he may be convicted of the underlying
offense.[20]
Therefore, according to the commentary to the Hawaii
statute, the kind of minor contact that Trooper Randall had with
Howard while Howard was running away would not constitute
resisting arrest under the Hawaii statute. The Hawaii statute
appears to conclude that a certain amount of physical contact
will take place during any arrest, and the policy behind the
statute is to confine the offense to uses of force that involve
more than mere noncompliance.
We presume that the Alaska legislature was aware of
this commentary when it adopted our resisting arrest statute. We
believe that the legislature was therefore aware of this aid in
understanding the [Hawaii] code and probably intended to adopt
this interpretation of the Alaska resisting arrest statute.
We accordingly conclude, based on the legislative
history of our resisting arrest statute, that the minimal contact
which the State proved in this case was not sufficient to
constitute force for purposes of the resisting arrest statute.
The State presented a second theory of how Howard
committed the offense of resisting arrest. The State argued that
when Howard fled into the woods, Trooper Randall did not follow
Howard because he was concerned that he might provoke a serious
confrontation with Howard. He therefore waited for assistance to
handle the situation with more safety. The State argues that
Howards actions therefore constituted an exercise of force
against Trooper Randall because Howards actions created the
threat of imminent bodily impact.21 But Trooper Randall
conceded that Howard did not do anything other than attempt to
evade him by hiding in the woods.
Under these circumstances, we see no basis for a jury
to find that Howards act of hiding in the woods constituted a
threat of imminent bodily impact. We do not interpret the
statute to apply to situations where a defendant merely tries to
evade the officer or hide. It may well have been prudent for
Trooper Randall, for his own safety and Howards, to take steps to
avoid a possible confrontation in the woods. But that does not
convert Howards actions into resisting arrest. We accordingly
conclude that the State did not present sufficient evidence for
the jury to convict Howard under this theory.
Conclusion
We conclude that the State did present sufficient
evidence for the jury to convict Howard of forgery in the second
degree for signing Omari S. Russells name to the traffic citation
with the intent to defraud. We accordingly affirm that
conviction. But we conclude that the State did not present
sufficient evidence for the jury to convict Howard of resisting
arrest. We therefore order the trial court to enter a judgment
of acquittal for Howard on that charge.
Howards conviction for forgery in the second degree is
AFFIRMED. His conviction for resisting arrest is REVERSED.
_______________________________
1 AS 11.46.505(a)(2).
2 AS 11.56.800(a)(1)(B)(ii).
3 AS 11.56.700(a)(i).
4 AS 28.15.011(b).
5 AS 11.46.505(a)(2) and AS 11.46.510(a).
6 AS 11.46.990(11).
7 Sizemore v. State, 847 So.2d 970 (Ala. Crim. App. 2002);
State v. Bedoni, 779 P.2d 355 (Ariz. App. 1989); Rushing v.
State, 684 So.2d 856 (Fla. App. 1996); State v. Wasson, 964 P.2d
820 (N.M. App. 1998); ex. rel. P.S. v. State, 38 P.3d 303 (Utah
App. 2001); State v. Richards, 36 P.3d 1119 (Wash. App. 2001).
8 Morrison v. State, 469 P.2d 125, 126 (Alaska 1970);
Wasson, 964 P.2d at 823.
9 Sizemore, 847 So.2d at 973; Bedoni, 779 P.2d at 359;
Wasson, 964 P.2d at 823-24; ex. rel. P.S., 38 P.3d at 307.
10 AS 11.56.800 provides in pertinent part:
False information or report.
(a) A person commits the crime of false information or report if
the person knowingly
(1) gives false information to a peace officer
(A) with the intent of implicating another in an
offense; or
(B) concerning the persons identity while the person
is
(i) under arrest, detention, or investigation for
a crime; or
(ii) being served with an arrest warrant or being
issued a citation.
11 AS 11.56.700(a)(1).
12 AS 11.81.900(b)(26).
13 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)
(quoting Martin v. Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).
14 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996) (quoting Tesoro Alaska Petroleum Co. v. State,
746 P.2d 896, 905 (Alaska 1987)).
15 Alaska Criminal Code tentative draft Part IV, Article
V.
16 AS 11.56.700(a)(2).
17 State v. Flores, 772 P.2d 589, 593-94 (Ariz. App.
1989).
18 Hawaii Penal Code Division 5, Title 37.
19 Id.
20 Commentary on Haw. Rev. Stat. 710-1026 (emphasis
added).
21 AS 11.81.900(b)(26).
