|
You can of the Alaska Court of Appeals opinions.
|
|
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
| Y. J., | ) |
| ) Court of Appeals No. A-9021 | |
| Appellant, | ) Trial Court No. 3AN-04-173 DL |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2034 March 3, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Dan A. Hensley,
Judge.
Appearances: Jill C. Wittenbrader, Assistant
Public Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Following a bench trial in front of Superior Court
Judge Dan A. Hensley, Y. J. was found to be a delinquent minor
based on allegations that he, as a seventeen-year-old, carried a
concealed firearm (fifth-degree weapons misconduct under
AS 11.61.220(a)(6)), and that he also hid evidence of this crime
(tampering with evidence under AS 11.56.610(a)).
These charges arose from an incident that occurred on
the evening of July 17, 2004. Anchorage Police Officer Jack
Carson and several other officers were investigating a shooting
that had occurred earlier that day. The officers approached a
group of young men and juveniles who were standing around a
parked car. One of the juveniles, later identified as Y. J.,
began to back away from the officers and then turned and ran.
Y. J. ran hunched over, and he appeared to be holding
something inside his pants. Although Officer Carson could not
see this object, he suspected that it was a gun because Y. J. was
holding the object at his hip.
Officer Carson lost sight of Y. J. several times as the
boy rounded the buildings along Russian Jack Drive. During one
of the times when Y. J. was out of the officers sight, the boy
was running along a wooden fence. Unbeknownst to Y. J., another
officer was running parallel to Y. J. on the other side of the
fence. This officer saw a handgun arc over the fence, rattle
through the branches of a tree, and then fall to the ground at
his feet.
In the meantime, Officer Carson continued to chase
Y. J.. The officer arrived at the parking area in front of a
condominium building located at 1701 Russian Jack Drive. Y. J.
was nowhere to be seen. The officer asked a bystander where
Y. J. had gone, and the bystander pointed to Unit D-1 of the
condominium building. Officer Carson and several other officers
posted themselves around the entrance to that unit.
Y. J. was indeed inside Unit D-1. Damon Shine and his
14-year-old daughter lived in this unit. The daughter heard
someone come into the residence. When the girl went upstairs to
find out who it was, she discovered Y. J. (with whom she was
acquainted) in the upstairs bathroom. The girl told Y. J. to
leave, but he refused. The girl then went outside, where she
encountered the police officers.
Y. J. came out of the residence several minutes later,
and the officers took him into custody.
Officer Randy Rhodes then entered the residence,
looking for weapons. He discovered a holster under a bed on the
second floor. When Damon Shine was asked about this holster, he
confirmed that it did not belong to him or to anyone else in his
family.
The police later learned that both the holster and the
handgun (the one that was tossed over the fence) had been stolen
approximately two years earlier. The holster was designed to
hold that particular handgun.
At Y. J.s trial, he contended that the State had failed
to prove, beyond a reasonable doubt, that he was the person who
tossed the gun over the fence or who placed the holster under the
bed. Superior Court Judge Dan A. Hensley rejected these
contentions. He found that Y. J. had in fact possessed the
concealed handgun and holster, that Y. J. had tossed the gun over
the fence, and that Y. J. had then hidden the holster under the
bed in the condominium unit.
After his trial, Y. J. filed a motion for a partial
judgement of acquittal. In this motion, Y. J. argued that even
if he had tossed the gun over the fence, and even if he had
hidden the holster under the bed, these acts did not constitute
the crime of evidence tampering under AS 11.56.610(a). Judge
Hensley denied this motion, and Y. J. now appeals Judge Hensleys
decision. (Y. J. does not appeal Judge Hensleys finding that he
committed fifth-degree weapons misconduct by possessing a
concealed firearm.)
Y. J. argues that, under this Courts decision in Vigue
v. State, 987 P.2d 204 (Alaska App. 1999), he is entitled to a
judgement of acquittal on the evidence tampering charge even if
the State proved that he tossed the handgun over the fence and
then hid the holster under the bed. For the reasons explained
here, we need not resolve whether Y. J.s act of tossing the
handgun over the fence constituted evidence tampering, because we
hold that Y. J.s act of hiding the holster did constitute the
offense of evidence tampering.
Did Y. J.s act of tossing the handgun over the fence
constitute the offense of evidence tampering as defined
in AS 11.56.610(a)?
In Vigue, this Court held that a defendants
act of tossing drugs to the ground when he saw the
police approaching did not constitute an act of
suppression, concealment, or removal of evidence for
purposes of Alaskas evidence tampering statute, AS
11.56.610(a). 987 P.2d at 210. And, after the
briefing was completed in Y. J.s case, this Court
decided Anderson v. State, 123 P.3d 1110 (Alaska App.
2005), another case involving the evidence tampering
statute. In Anderson, we held that a defendants act of
tossing a handgun and ammunition from a car while he
was being chased by the police did not constitute
evidence tampering. Id. at 1118-19.
In Y. J.s case, his act of tossing away the
handgun while he was being chased by Officer Carson
appears to be analogous to the conduct of the defendant
in Anderson when he tossed the gun from the car
conduct that we ruled did not constitute the actus reus
of evidence tampering. The State argues, however, that
Y. J.s case is different because (1) Y. J. was out of
Officer Carsons sight when he tossed the handgun away,
and (2) Y. J. did not simply throw the gun down, but
rather tossed the gun over a fence where he thought it
would remain hidden. The State argues that it was pure
fortuity that there was an officer on the other side of
the fence who observed the gun fall. Otherwise, Y. J.
might have accomplished his intention of concealing his
possession of the handgun indeed, perhaps concealing
the handguns very existence from the police.
The State offers plausible distinctions
between the facts of Y. J.s case and the facts of cases
like Vigue and Anderson. On the other hand, one could
plausibly argue that, from the standpoint of protecting
police officers, we should not interpret the law so as
to penalize armed suspects for tossing away their
weapons during police chases.
However, we conclude that we need not resolve
these issues, because Judge Hensley found Y. J. guilty
of evidence tampering on a separate independent basis:
Y. J.s act of hiding the holster in the condominium
unit. As we explain here, this latter conduct did
constitute the offense of evidence tampering.
Y. J.s act of concealing the holster under the bed
constituted the offense of evidence tampering as
defined in AS 11.56.610(a)
Y. J. argues that, as a legal matter, he did
not conceal the holster because the police quickly
located this holster when, following Y. J.s surrender,
they entered the residence and searched the residence
for weapons. Y. J. argues that a holster [placed]
under a bed is as [likely] to [be discovered] as ...
something [dropped] in plain view of a policeman. In
both instances, there is almost no effort put into an
attempt to hide ... the object. We disagree.
To the extent that Y. J. may be arguing that
he did not intend to hide the holster when he placed it
under the bed, he is disputing Judge Hensleys view of
the facts in particular, Judge Hensleys verdict that
Y. J. put the holster under the bed with intent to
impair its verity or availability in ... a criminal
investigation (the mens rea required by the evidence
tampering statute).
The substantial evidence test governs
appellate review of verdicts in judge-tried cases.
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980). Thus,
Y. J. must show that there was no substantial evidence
to support Judge Hensleys verdict.
Under the substantial evidence test, we must
uphold Judge Hensleys verdict if the record contains
evidence that a reasonable mind might accept as
adequate to support [the challenged] conclusion.1 We
do not re-weigh the evidence or choose between compet
ing inferences; we only determine whether evidence
exists to support the judges conclusion.2
Here, there is ample evidence that Y. J.
placed the holster under the bed in the hope that the
police would not find it. As explained above, Y. J.
ran into another familys residence to escape from the
police. By this maneuver, he did temporarily frustrate
police efforts to locate him. While in the residence,
Y. J. placed his holster under a bed. A few minutes
later (after Y. J. was discovered and was asked to
leave by a resident of the house), Y. J. emerged from
the residence and surrendered to the police. But
because he left the holster behind in the residence,
Y. J. had no further physical evidence on his person to
connect him to the possession of the concealed handgun.
From these facts, Judge Hensley could
justifiably conclude that when Y. J. placed the holster
under a bed in a house that was not his, Y. J. did so
for the purpose of hiding the holster from the police,
thus impair[ing] its ... availability in ... a criminal
investigation.
This leaves the legal issue of whether Y. J.s
conduct constituted the actus reus of evidence
tampering.
Y. J. argues that he never actually concealed
the holster because the police located it so quickly
when they swept the condominium unit for weapons. But
Y. J.s argument overlooks the fact that he ran into
another familys residence and, while he was out of
sight of the police, he put the holster in a place
where the police would not find it unless they entered
the residence and searched. Even after the police
located the holster, they had to question Damon Shine
in order to ascertain that the holster did not belong
to a member of his family.
Given these circumstances, the fact that the
police quickly found the holster in its hiding place
does not defeat a finding that Y. J.s conduct
constituted a concealment of the holster for purposes
of the evidence tampering statute.
Y. J. argues that we should follow the New
Jersey courts by limiting our evidence tampering
statute so that it does not apply to efforts to hide
evidence of an on-going possessory offense.3 But this
suggested interpretation of the statute would not help
Y. J.. His act of concealing the holster under the bed
in the Shine residence occurred after his possessory
offense (carrying a concealed firearm) had ended. Not
only had Y. J. tossed the handgun away, but he had also
reached a place of temporary refuge (the condominium
unit); thus, there was a break in the action. With the
police still searching for him, Y. J. then attempted to
rid himself of an article (the holster) that tended to
circumstantially prove that he had earlier possessed
the concealed firearm so that when he emerged from the
residence and surrendered to the police, he would not
be carrying the tell-tale holster.
Our decision in Anderson suggests that Y. J.
might not have been guilty of evidence tampering if he
had tossed away the holster and the handgun at the same
time. Thus, it may appear incongruous to hold Y. J.
liable for evidence tampering because he waited until a
few minutes later to conceal the holster. We base our
decision on the fact that there was a break in the
action, that Y. J. had reached a place of temporary
refuge, and that Y. J. hid the holster in a such manner
that it could not definitely be linked to him until the
police interviewed the home owner and verified that the
holster did not belong to anyone living there.
There must be a point at which an act of
concealing evidence is no longer deemed merely an
aspect of the underlying possessory offense, but rather
takes on independent legal significance. Without some
sort of dividing line, either all acts of concealing
evidence of a possessory offense would be evidence
tampering, or none would. We are not prepared to
definitively draw this line for all future cases, but
we do hold that, under the facts of this case, Y. J.s
act of hiding the holster in the condominium unit
crossed the line and became an independent offense.
Y. J.s argument that the evidence tampering statute
imposes a disproportionate penalty for acts of evidence
concealment relating to a misdemeanor
Y. J. raises one last argument: the
assertion that it is unfair to impose felony penalties
on a person for concealing evidence of a misdemeanor
(in this case, the class B misdemeanor of fifth-degree
weapons misconduct).
Strictly speaking, Y. J. does not face felony
penalties for evidence tampering, since he was a minor
prosecuted under Alaskas delinquency laws. However,
the fact that Y. J. has been adjudicated a delinquent
based on felony conduct does have more severe
repercussions than if he had been adjudicated a
delinquent based on misdemeanor conduct. See, for
example, AS 11.61.200(a)(1), which declares that the
prohibition on felons carrying concealable firearms
applies to persons who have been declared delinquent
based on felony conduct. See also AS 12.55.155(c)(19),
which declares that a felony sentence can be aggravated
if the defendant was previously adjudicated a
delinquent based on felony conduct. We therefore turn
to the merits of Y. J.s argument.
In Anderson and in Vigue, we pointed out the
seeming illogic of convicting someone for a felony when
they try to discard or conceal evidence of a minor
offense.4 Based on the anomalous results that would
occur if we interpreted the evidence tampering statute
broadly in situations where people discarded or hid
evidence of an ongoing minor possessory offense, we
concluded that the legislature had not intended for the
evidence tampering statute to apply to those
situations.
But our decisions in Anderson and Vigue are
ultimately based on statutory construction. When a
question of law is governed by statute, it is not our
role to adopt the social policy that we deem best.
Rather, our role is to interpret the statute to
ascertain the legislatures intent, and then to construe
the statute so as to implement that intent (assuming no
violation of the constitution).5
Here, we have already resolved the relevant
issue of statutory interpretation: we have concluded
that Y. J.s act of concealing the holster falls within
the scope of the evidence tampering statute.
We acknowledge that, in some instances, a
defendants punishment for evidence tampering can be
much more severe than the defendants punishment for the
underlying crime to which the evidence pertains. The
legislature has declared that every act of evidence
tampering is a felony, even when the underlying offense
to which that evidence relates is only a misdemeanor or
even a violation (a non-criminal offense that carries
only a fine as punishment).6
Indeed, the evidence tampering statute
applies to the concealment, suppression, removal,
destruction, mutilation, or alteration of physical
evidence pertinent to any official proceeding. An
official proceeding is defined as [any] proceeding
heard before a legislative, judicial, administrative,
or other governmental body or official authorized to
hear evidence under oath. AS 11.81.900(b)(41). Thus,
the evidence tampering statute covers physical evidence
that is pertinent to civil lawsuits and administrative
proceedings, not just criminal and quasi-criminal
prosecutions.
Y. J. argues that it is unfair, and bad
policy, to make every act of evidence tampering a
felony. But this is a question of social policy
entrusted to the judgement of the legislature.
Whatever may be the merits of Y. J.s position, he must
address his arguments to the legislature, not to this
Court.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991); Storrs
v. State Medical Board, 664 P.2d 547, 554 (Alaska 1983).
2Smith, 816 P.2d at 904; Storrs, 664 P.2d at 554.
3See State v. Sharpless, 715 A.2d 333, 343 (N.J. App. 1998);
State v. Fuqua, 696 A.2d 44, 47-48 (N.J. App. 1997). We
discussed both of these cases in Vigue, 987 P.2d at 208-09.
4Anderson, 123 P.3d at 1118; Vigue, 987 P.2d at 211.
5Progressive Insurance Co. v. Simmons, 953 P.2d 510, 516
(Alaska 1998); State v. Roberts, 999 P.2d 151, 153 (Alaska
App. 2000); State v. McCallion, 875 P.2d 93, 98-99 (Alaska
App. 1994).
6See AS 11.81.900(b)(62).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
