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Hillman v. State (9/23/2016) ap-2524

Hillman v. State (9/23/2016) ap-2524

                                                         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 @ akcourts.us
  



                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ELIZABETH ROSE HILLMAN,  

                                                                          Court of Appeals No. A-12032  

                                       Appellant,                       Trial Court No. 3AN-13-7865 CR  



                             v.  

                                                                                      O P I N I O N  

STATE OF ALASKA,  



                                       Appellee.                        No. 2524 - September 23, 2016  



                                                

                   Appeal   from   the   District   Court,   Third   Judicial   District,  

                   Anchorage, Jo-Ann Chung, Judge.  



                   Appearances: Cynthia L. Strout, Attorney at Law, Anchorage,  

                                                                                

                    for the Appellant.  John H. Haley, Assistant Attorney General,  

                                                                                                

                    Office  of  Special  Prosecutions,  Anchorage,  and  Craig  W.  

                                   

                    Richards, Attorney General, Juneau, for the Appellee.  

                                                



                    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                            

                    Superior Court Judge.*  



                    Judge ALLARD.  



                    Following a jury trial, Elizabeth Rose Hillman was convicted of promoting                     



contraband   in   the   second   degree,   AS   11.56.380(a)(1),   for   "introduc[ing],  tak[ing],  



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

convey[ing], or attempt[ing] to introduce, take, or convey contraband into a correctional  

                                                                                                                   



facility." On appeal, Hillman argues shecould not beconvicted ofpromotingcontraband  

                                                                                                                     



under this subsection because this subsection was not meant to apply to individuals in  

                                                                                                   



her position (i.e., those who are incarcerated and already inside a correctional facility).  

                                                                                                                                       



                     For the reasons explained in this opinion, we agree that subsection(a)(1) of  

                                                                                                                                   



the statute does not apply to Hillman's conduct.  We therefore reverse her conviction.  

                                                                                                                    



          Factual and legal background of this case  

                                                                      



                     Hillman  was  serving  a  jail  sentence  at  Hiland  Mountain  Correctional  

                                                                                                                  



Center.  After a visit in the enclosed prison yard with a visitor who came from outside  

                                                                                                         



the correctional facility, Hillman entered the "strip-out" room - a room where inmates  

                                                                                                                          



are strip-searched to prevent contraband from entering the prison from the visitor yard.  

                                                                                                                                       



When Hillman took off her shirt and handed it to the officer on duty, a plastic baggie fell  

                                                                                                                                 



to  the  floor.        The  baggie  contained  chewing  tobacco  - a  substance  prohibited  to  

                                                                                                                                  



prisoners.         Based  on  this  incident,  the  State  charged  Hillman  with  second-degree  

                                                                                                               



promoting contraband.  

                  



                    Alaska  Statute  11.56.380(a)  provides  for  two  ways  that  a  person  can  

                                                                                                                                



commit the crime of second-degree promoting contraband:  

                                                                         



                     (a) A person commits the crime of promoting contraband in  

                                                                                                              

                    the second degree if the person  

                                                           

                               (1)    introduces,         takes,       conveys,        or    attempts        to  

                                                                                                            

                     introduce,  take,  or  convey  contraband  into  a  correctional  

                                                                                              

                     facility; or  

                                  

                               (2) makes, obtains, possesses, or attempts to make,  

                                                                                                        

                     obtain,   or   possess  anything  that  person  knows  to  be  

                                                                                                            

                     contraband          while       under       official       detention        within       a  

                                                                                                             

                     correctional facility. (emphasis added)  

                                                                       



                                                               - 2 -                                                         2524
  


----------------------- Page 3-----------------------

                                                                         Here, Hillman was under official detention within a correctional facility                                                                                                                                                                                                                                                                                              



when she obtained the contraband, but she was prosecuted under subsection (a)(1) of the                                                                                                                                                                                                                                                                                                                                                                                



 statute, the subsection enacted for persons who are bringing contraband into the facility.                                                                                                                                                                                                                                                                                                                                                   



                                                                         At Hillman's trial, her attorney pointed out that subsection (a)(2) - not                                                                                                                                                                                                                                                                                                                   



 subsection (a)(1) - was the portion of the statute that appeared to apply to Hillman's                                                                                                                                                                                                                                                                                                                                         



conduct, and the attorney asked the district court to grant Hillman a judgment of acquittal                                                                                                                                                                                                                                                                                                                                              



on this basis.                                                            After hearing the defense attorney's argument, the prosecutor sought to                                                                                                                                                                                                                                                                                                                           



amend the charging document to include both subsection (a)(1) and subsection (a)(2),   



and the prosecutor asked the judge to instruct the jury on both subsections.                                                                                                                                                                                                                                                                         



                                                                         The trial judge denied Hillman's motion for judgment of acquittal and the                                                                                                                                                                                                                                                                                                                     



 State's motion to amend the charge.                                                                                                                                                               The judge concluded that                                                                                                                      both  subsections applied   



to Hillman's conduct, and that the State therefore had the discretion to charge Hillman                                                                                                                                                                                                                                                                                                                                                   



under either subsection.                                            



                                                                         At the close of the trial, the jury was instructed on subsection (a)(1) only                                                                                                                                                                                                                                                                       



 (which has a lower mens rea than subsection (a)(2)), and the jury convicted Hillman of                                                                                                                                                                                                                                                                                                                                                                                     



violating that subsection.                                                



                                                                         Hillmannow appeals, renewingthesamelegal arguments                                                                                                                                                                                                                                                                 sheraised                                              below.  



The State has not cross-appealed the denial of its motion to amend the charge.                                                                                                                                                                                                                                                                                                                   



                                      Why we conclude that Hillman's conduct did not violate subsection (a)(1)                                                                                                                                                                                                                                                                                                      



                                                                         The proper interpretation of a statutory provision is a question of law that                                                                                                                                                                                                                                                                                                              



                                                                                                                         1  

we   review   de   novo.                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                    Alaska  courts  apply  a  sliding-scale  approach  to  statutory  



                                                                             2  

interpretation.                                                                                                                                                                                                                                                                                                                                                                                                                                                      

                                                                                         Under this approach, the plain language of a statute is significant but  



                   1                  Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  



                  2                 Id.  



                                                                                                                                                                                                                                -  3 -                                                                                                                                                                                                                      2524
  


----------------------- Page 4-----------------------

does not always control; rather, "legislative history can sometimes alter a statute's literal                                            



            3  

terms."                                                                                                                         

               As a general rule, "the plainer the language of the statute, the more convincing  



                                                              4  

                                                        

contrary legislative history must be." 



                                                                                                                             

                       Here, the legislative history of AS 11.56.380 unambiguously demonstrates  



                                                                                                                                               

that the legislature intended the two subsections to apply to two different groups of  



                                                                                                                                     

people.  The first subsection (a)(1) was intended to apply to non-incarcerated persons  



                                                                                                                                           

who brought contraband from outside the correctional facility into the facility.   The  



                                                                                                                                       

second subsection (a)(2) was intended to apply to incarcerated persons who obtain  



                                                                                     

contraband while they are within the correctional facility.  



                                                                                                                                           

                       The  Commentary  to  Alaska's  Revised  Criminal  Code  explains  this  



distinction:  



                      Note that the crime [of promoting contraband in the second  

                       degree] can be committed by either the person who brings the  

                                                                                                                       

                       contraband  into  the  facility  (  380(a)(1))  or  the  person  

                                                                                                                

                       confined in the facility ( 380(a)(2)).  Use of the culpability  

                                                                                                          

                      term  "knows"  in    380(a)(2)  and  its  absence  in  (a)(1)  

                                                                                                            

                       indicates that the person who brings the contraband into the  

                                                                                                                       

                       facility is not required to know that the item is contraband.  

                                                                                                                             

                       Recklessness  is  sufficient  as  to  that  element  (  11.81.- 

                                                                                                               

                       610(b)(2)).   Such recklessness could be established by the  

                                                                                                                       

                      nature  of  the  item  (i.e.,  firearm)  or  by  the  posting  by  

                                                                                                                       

                       correctional officials of a list of contraband items near the  

                                                                                                                       

                       entrance of the facility.5  

                                                 



      3    Id.  



      4    Id.  



      5    Commentary  on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at  



79, 1978 Senate Journal 1399.  



                                                                     - 4 -                                                               2524
  


----------------------- Page 5-----------------------

                     Thestatutory languagedirectly mirrorsthisCommentary. Subsection(a)(1)  

                                                                                                                              



of  the  statute  refers  to  persons  who  introduce,  take,  or  convey  contraband  "into  a  

                                                                                                                                    



correctional facility." Subsection (a)(2), on the other hand, refers to persons who make,  

                                                                                                                             



obtain, or possess contraband while the person "[is] under official detention within a  

                                                                                                                                    



correctional facility."  

                    



                    We therefore conclude that only subsection (a)(2) of the statute applies to  

                                                                                                                                   



Hillman's conduct in this case.  Because Hillman was tried under subsection (a)(1), the  

                                                                                                                                 



district court should have granted Hillman's motion for a judgment of acquittal.  

                                                                                                             



                     The judgment of the district court is REVERSED.  

                                                                              



                                                               -  5 -                                                        2524
  

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