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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
PATRICK LEE STRANE, )
) Court of Appeals No. A-10566
Appellant, ) Trial Court No. 3AN-09-4445 CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
) No. 2302 - March 25, 2011
Appellee. )
)
Appeal from the District Court, Third Judicial District,
Anchorage, David R. Wallace, Judge.
Appearances: Henry E. Graper, III and Max D. Holmquist,
Gorton, Logue, and Graper, Anchorage, for the Appellant.
Jennifer Messick and David M. Hammond, Assistant Municipal
Prosecutors, and Dennis A. Wheeler, Municipal Attorney,
Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
This case requires us to clarify the culpable mental state that must be proved
in prosecutions under the Municipality of Anchorage's concealment-of-merchandise
ordinance, Anchorage Municipal Code (AMC) 8.15.050.B. This ordinance makes it a
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crime for a person to "knowingly conceal" merchandise when the person is on the
premises where the merchandise is stored or is offered for sale.
We conclude that when a defendant is prosecuted under this ordinance, the
government must prove that the defendant concealed the merchandise (in the sense of
knowingly placing the merchandise where it would be out of sight) and that the
defendant did so with the intent of concealing - i.e., hiding - the merchandise from
its rightful owner (or the owner's employees or agents).
In the present case, the jury was not instructed that the Municipality had to
prove an intent to conceal from the rightful owner. In fact, the prosecutor actively
argued to the jury that it was irrelevant whether the defendant acted with this intent or,
instead, with an innocent intent when the defendant put the merchandise out of sight. For
this reason, we reverse the defendant's conviction.
Background
On March 25, 2009, a loss-prevention officer at a downtown Anchorage
grocery observed Patrick Strane put about a dozen items into a shopping cart. These
items included a prime rib, a beef pinwheel, king crab legs, a package of ahi poke, a
gallon of milk, and some Italian mushrooms. The value of the prime rib and the king
crab legs alone was approximately $80.
While the loss-prevention officer continued to watch Strane, Strane pushed
his shopping cart to an area of the store where there appeared to be no one else around.
Strane then pulled four opaque plastic bags out of his pocket - bags that carried the
grocery store's logo, and that were the same as the ones used by store employees to bag
customers' purchases. Strane placed all of the items in his shopping cart into these
plastic bags. While Strane was loading the items into the bags, he repeatedly looked up
and down the aisle, apparently checking to see if anyone was paying attention to him.
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After Strane finished bagging the items in his cart, he pushed the cart
toward the store exit, bypassing the check-out aisles. However, as Strane neared the exit
door, he saw a uniformed store manager standing nearby. Upon seeing the store
manager, Strane pushed the shopping cart away from the exit and into the deli section
of the store, where he abandoned the cart and all its contents. Strane then began walking
toward the exit again. This time, the loss-prevention officer stopped him, and Strane
exclaimed, "I never took the stuff out of the store."
Strane was charged with concealment of merchandise under AMC
8.15.050.B. As we indicated earlier, this ordinance states that a person commits the
crime of concealment of merchandise if the person "knowingly conceals upon or about
his or her person any merchandise or thing of value upon the premises where such
merchandise or thing of value is kept for the purposes of sale, barter or storage."1 The
ordinance then adds "Any merchandise or thing of value found concealed upon or about
the person and which has not theretofore been purchased by the person is prima facie
evidence of knowing concealment."2
At Strane's trial, the municipal prosecutor took the position that Strane
concealed the merchandise because he was preparing to steal it. Strane took the stand
and testified that he did not intend to steal from the store - that he bagged the items in
the shopping cart because he did not want the liquid from the beef to contaminate the
other foodstuffs.
When the municipal prosecutor delivered her summation to the jury, she
argued that Strane's explanation for his conduct was unbelievable. But the prosecutor
also argued that it did not matter whether Strane's explanation was believable or not -
1 AMC 8.15.050.B.
2 Id.
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because, under the ordinance, Strane's explanation for putting the items in the bags was
irrelevant:
Prosecutor : [The ordinance requires] that you have to
conceal [the merchandise]. ...
The [required] mental state ... of this crime ... [is]
knowingly. Pretty self-explanatory; [it means that] you do
something, [and] you're aware that what you're doing is of
that nature. Pretty self-explanatory. The mental state of
knowingly will also be defined for you [in the jury
instructions,] but it's not rocket science, okay?
So basically Mr. Strane had to know that when he was
putting [the] items into a bag that he was concealing them;
that you wouldn't be able to see them. Notice [that] what is
not required is for [the Municipality] to prove any kind of
motive, ... any kind of intent. [Our burden is to prove just]
that he [did it] knowingly. Okay? Now, [the offense] occurs
at the time ... that you conceal those items. [The ordinance]
doesn't say anything about walking out of a store, doesn't say
anything about timing, it just says you have to conceal it.
The jury convicted Strane, and he now appeals.
Discussion
The elements of the crime of concealment of merchandise codified
in AMC 8.15.050.B
Strane argues that the concealment-of-merchandise ordinance is
unconstitutionally vague. A criminal statute or ordinance is unconstitutional when it is
"so vague that [people] of common intelligence must necessarily guess at its meaning
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and differ as to its application."3 When we consider a vagueness challenge, we may
consider whether we can give the statute or ordinance a narrowing construction that will
provide constitutionally adequate notice.4 In particular, a requirement of specific intent
may protect a law from a vagueness challenge.5
6
Nearly thirty years ago, in Smith v. Anchorage, this court addressed a
constitutional challenge to an earlier version of Anchorage's concealment-of
merchandise ordinance. We concluded that, unless the ordinance was interpreted to
require proof of a culpable mental state, it would pose the constitutional problem of
authorizing criminal convictions for people who had no criminal intent.7 We therefore
held that the ordinance should be interpreted to require the government to prove that the
defendant acted with an intent to conceal the property.8
In Smith, we acknowledged that concealment-of-merchandise ordinances
are designed to eliminate the government's need to prove the "intent to steal" that is
traditionally an element of larceny.9 We therefore recognized that the "intent to conceal"
required by the Anchorage ordinance was not equivalent to an "intent to steal" or an
3 State v. Lawler, 919 P.2d 1364, 1365-66 (Alaska App. 1996) (quoting F/V Am.
Eagle v. State, 620 P.2d 657, 665 (Alaska 1980)).
4 See Dykstra v. Anchorage, 83 P.3d 7, 9 (Alaska 2004); Stock v. State, 526 P.2d 3,
11 (Alaska 1974).
5 See Turney v. State, 936 P.2d 533, 543 (Alaska 1997).
6 652 P.2d 499 (Alaska App. 1982).
7 Id . at 502.
8 Id .
9 Id. at 501-02.
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"intent to permanently deprive."10 However, we concluded that the ordinance would not
be constitutional if it was interpreted to apply to any and all acts of concealment,
regardless of the defendant's motive or purpose.11
There is a potentially significant difference between the earlier version of
the ordinance that we construed in Smith and the current version of the ordinance (under
which Strane was prosecuted). The earlier version of the ordinance defined the actus
reus of the crime as "willfully" concealing merchandise, while the current version uses
the phrase "knowingly conceal."12 Both Strane and the Municipality agree that the
current version of the ordinance should be read to incorporate the element of "intent to
conceal," and that the ordinance would be unconstitutional without that element.
However, Strane and the Municipality disagree as to the precise meaning of "intent to
conceal."
The Municipality takes the position that the "intent to conceal" required by
Smith is merely a component of the statutory requirement that the defendant "knowingly"
conceal the merchandise.
Title 8 of the Anchorage Municipal Code expressly incorporates the
definitions of the four culpable mental states used in the state criminal code.13 As
defined in AS 11.81.900(a)(2), the culpable mental state of "knowingly" (when applied
to conduct) means that "the person is aware that the conduct is of that nature."
The Municipality argues that, given this definition of "knowingly," and
given the fact that Strane's jury was instructed on this definition, the jury could only
10 Id. at 502.
11 Id. at 502-03.
12 Id . at 500 n.1.
13 See AS 11.81.900(a)(1)-(4); AMC 8.05.010.B.
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have convicted Strane if the jurors concluded that Strane acted with an awareness that
he was concealing the merchandise in the shopping cart. Thus, the Municipality
concludes, the jury found the element of "intent to conceal."
But this interpretation of "knowing concealment" does not cure the
ordinance of its constitutional infirmity; it does not eliminate the risk we identified in
Smith, that people could be convicted under the ordinance even though they had no
criminal intent.
Grocery stores often have separate areas within them - for example, a
pharmacy, an electronics center, or a café and deli - where items can be separately
purchased, even though the person intends to continue shopping in the store. If the
Anchorage concealment-of-merchandise ordinance were interpreted literally, a person
would violate the ordinance if they made a pharmacy purchase and then placed the
purchased item in their pocket, or in an opaque shopping bag, while they remained in the
store and continued to shop for other items. The person would have "knowingly
concealed" merchandise while "upon the premises where such merchandise ... is kept for
the purposes of sale, barter or storage."14
This result is certainly counter-intuitive. Moreover, the second sentence
of the ordinance clearly suggests that the ordinance was not aimed at people who
knowingly conceal purchased merchandise, but rather people who knowingly conceal
unpurchased merchandise. This second sentence states, "Any merchandise or thing of
value found concealed upon or about the person and which has not theretofore been
purchased by the person is prima facie evidence of knowing concealment [for purposes
of this ordinance]."15
14 AMC 8.15.050.B.
15 Id . (emphasis added).
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In other words, it appears that the Anchorage Municipal Assembly was not
trying to outlaw a person's concealment of paid-for merchandise, but only the
concealment of unpurchased merchandise. This means that the ordinance should be
interpreted to require proof of something more than a person's mere act of knowingly
concealing merchandise while on commercial premises.
In addition, there are circumstances where a person might knowingly
conceal an unpurchased item even though they fully intend to pay for the item before
leaving the store. For example, a person who is shopping with their young children
might conceal candy from the children, even though the person has every intention of
paying for the item at the check-out counter. Similarly, a person who is shopping with
their spouse might conceal an anniversary card (again, with the intention of paying for
it).
The distinguishing feature of these examples is that, even though the person
has knowingly concealed the merchandise (in the sense of knowingly placing it out of
view), the person's purpose is not to hide the merchandise from the store owner or the
store employees. We conclude that the concealment-of-merchandise ordinance should
not be read to apply to such circumstances.
Strane also argues that the word "conceal" and the phrase "upon or about
their person" are unconstitutionally vague. But these terms have an ordinary meaning
that is commonly understood.16 A reasonable person could foresee that they commit an
offense if they conceal merchandise in a shopping cart that they are pushing with the
16 See generally Bachlet v. State, 941 P.2d 200, 205 (Alaska App. 1997) (stating that
"unless otherwise defined, words will be interpreted as taking their ordinary, contemporary,
common meaning" (quoting Perrin v. United States, 444 U.S. 37, 42 (1979))).
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intent to conceal the merchandise from the store owner.17 We conclude that the
shoplifting ordinance is not unconstitutionally vague if we apply the narrowing
construction we first adopted in Smith.
Accordingly, we hold that AMC 8.15.050.B must be read to require the
Municipality to prove the following: (1) that the defendant concealed merchandise upon
or about his person; (2) that the defendant was on the premises where the merchandise
was kept for the purpose of sale, barter, or storage; (3) that the defendant had not
purchased the merchandise; and (4) that the defendant intended to conceal the
merchandise from the store owner or the owner's employees.
Application of our holding to Strane's case
Strane's jury was not instructed that the Municipality was required to prove
that he acted with the intent to conceal the merchandise from the store employees or to
hide the fact that the merchandise had not been paid for. Strane did not object to this
omission at the time, but the fact remains that the jury was not asked to reach a decision
on all the necessary elements of the offense. Accordingly, we must reverse Strane's
conviction unless we are convinced that this error was harmless beyond a reasonable
doubt.18
As we explained earlier, the prosecutor at Strane's trial openly argued to
the jury that it did not matter whether the jurors believed Strane's explanation for his
17 See De Nardo v. State, 819 P.2d 903, 906 (Alaska App. 1991) (addressing the
meaning of the statutory phrase "concealed on the person").
18 See generally Dailey v. State, 65 P.3d 891, 896 (Alaska App. 2003) (holding that
constitutional error is a ground for reversal of a conviction unless the error is harmless
beyond a reasonable doubt).
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conduct - that the offense was complete when Strane knowingly placed the groceries
in the opaque shopping bags, regardless of his reason for doing so.
Given the jury instructions and the prosecutor's argument, it is possible that
the jury convicted Strane of concealment of merchandise even though the jurors believed
that when Strane put the groceries in the shopping bags, he did so to ensure that the
liquid from the beef did not leak into the other groceries, and not with an intent to
conceal the merchandise from the store employees or to hide the fact that the groceries
were not paid for. We are unable to say that the failure to instruct the jury on the
required culpable mental state was harmless beyond a reasonable doubt.
Accordingly, we conclude that the failure to instruct the jury on the
culpable mental state was plain error, and Strane's conviction must be reversed.
Conclusion
We REVERSE the district court's judgment. Strane is entitled to a new
trial.
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