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Silook v. State (5/10/2017) ap-2552

Silook v. State (5/10/2017) ap-2552

                                                                                        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                                                                



SHANNON  M.  SILOOK,  

                                                                                                                                                                 

                                                                                                                  Court of Appeals No. A-11608  

                                                                                                                                                                                

                                                            Appellant,                                         Trial Court No. 3PA-10-1577 CR  



                                             v.  

                                                                                                                                 O  P  I  N  I  O  N  

                                                                                                                                                                 

STATE  OF  ALASKA,  



                                                            Appellee.                                                 No. 2552 - May 12, 2017  

                                                                                                                                                                      



                              Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                                     

                              Vanessa H. White, Judge.  

                                                                       



                              Appearances:                     Callie Patton Kim, Assistant Public Defender,  

                                                                                                                                               

                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                            

                              Appellant.  Nancy R. Simel, Assistant Attorney General, Office  

                                                                                                                                                       

                              of   Criminal   Appeals,  Anchorage,  and  Craig  W.  Richards,  

                                                                                                                                               

                              Attorney General, Juneau, for the Appellee.  

                                                                                                                            



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

                                                                                                                                                  

                              Superior Court Judge.*  

                                                                                



                                            

                              Judge MANNHEIMER.  



                              Shannon M. Silook's three-year-old daughter suffered severe head injuries                                                                            



when she was left in the care of Silook's live-in boyfriend, Michael Ponte.                                                                                         When Silook   



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



Constitution and Administrative Rule 24(d).                                     


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

                                                                                                                               

was interviewed by the police about what had happened, Silook told the police that she,  



                                                                                                                                

not Ponte, had been caring for the child.  Silook also told the police that her daughter had  



                                                                                                                            

suffered the injuries earlier, either by hitting her head on some rocks or by falling during  



                                

a sledding accident.  



                                                                                                                    

                     For telling these lies to the police,  Silook  was convicted of first-degree  



                                                                                                                                 

hindering prosecution, AS 11.56.770.  Silook now appeals her conviction.  She does not  



                                                                                                                                 

dispute that she lied to the police, but she argues that her actions did not constitute the  



                                                                                       

crime of hindering prosecution as defined in the statute.  



                                                                                                                    

                     For the reasons explained in this opinion, we conclude that the prosecution  



                                                                                                                                

against Silook was based on a misinterpretation of the hindering prosecution statute, and  



                                                                          

that her conviction must therefore be reversed.  



  



                              

           Underlying facts  



                                                                                                                           

                     After Michael Ponte and Shannon Silook had dated for a time,  Silook  



                                                                                                                                 

became pregnant with the  couple's child.   During Silook's pregnancy, starting in the  



                                                                                                                              

summer of 2009, Ponte lived in Wasilla with Silook and her two other children - five- 



                                                            

year-old I.S., and three-year-old K.S.  



                                                                                                                            

                     In July 2009, Silook took I.S. with her to visit family in Savoonga.  Silook  



                                                                                                                                   

left K.S. in the care of her parents (Silook's father and stepmother), who also lived in  



               

Wasilla.  



                                                                                                                          

                     In the middle of  Silook's trip, Silook's parents returned K.S. to Ponte's  



                                                                                                                                 

care. Within hours after K.S. was returned to Ponte's care, Ponte called Silook to tellher  



                                                                                                                                

that K.S. was "all bruised up".   Silook assumed that K.S. had been injured while her  



                                                                                                                          

parents were caringfor her, so she telephoned her parents and confronted them. Silook's  



                                                                                                

parents denied that K.S. had been injured while in their care.  



                                                               - 2 -                                                          2552
  


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

                                                                                                                             

                    In early August, about a month after Silook returned from Savoonga, K.S.  



                                                                                                                             

became sick, and Silook sought medical care for her.   On August 3, 2009, K.S. was  



                                                                                                                       

admitted  to  the  Alaska  Native  Medical  Center  in  Anchorage  for  transient  estropia  



                                                                                                                        

(crossed eyes).  A medical examination revealed that K.S. was suffering from a swelling  



                                                                                                                       

of the optical disk in both of her eyes, and an MRI scan revealed that K.S. was bleeding  



                                                                       

subdurally in the left rear portion of her brain.  



                                                                                                                               

                    By mid-September, K.S.'s optical disk swelling had resolved, and she had  



                                 

a normal eye exam.  



                                                                                                                             

                    In early November, Gordon Shepard (a friend of Ponte's) noticed that K.S.  



                                                                                                                             

appeared to be suffering from a broken collar bone.                                  (One of K.S.'s shoulders was  



                                                                                                                                     

sagging, and K.S. cried and said that her shoulder hurt when Shepard picked her up.)  



                                                                            

Shepard mentioned these observations to Silook.  



                                                                                                                               

                    A few days later, on November 12, 2009, Silook drove to Anchorage to run  



                                                                                                                                

some errands and to visit her newborn daughter, who was in intensive care because of  



                                                                                                                             

medical problems associated with her birth.   Silook left I.S. and K.S.  in Ponte's care  



                                              

while she was in Anchorage.  



                                                                                                                        

                    Silook returned to Wasilla around 9:00 p.m. that evening.  The two children  



                                                                                                                           

were already in bed, and Ponte was playing video games with his friend, Shepard.  Ponte  



                                                                                                                       

told Silook that he had given both children a bath before putting them to bed.  



                                                                                                                              

                    Silook herself went to bed a couple hours after she came home, but she was  



                                                                                                                              

awakened by the sound of K.S. crying and saying "Momma" repeatedly.   Silook and  



                                                                                                                              

Ponte went to K.S.'s bedroom and saw that she was "jerking".  Ponte drove Silook and  



                                                                                                                                

K.S. to the Mat-Su Regional Hospital's emergency room in the middle of the night.  



                                                                                                                              

                    Silook later testified that Ponte told her to say that she (and not Ponte) had  



                                                                                                                                 

given  the  children  a  bath  that  evening,  and  that  K.S.  had  been  injured  earlier  in  a  



                              

sledding accident.  



                                                              - 3 -                                                          2552
  


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

                                                                                                                    

                    By the time  K.S.  arrived at Mat-Su Regional,  she was not responding  



                                                                                                                              

normally  to  her  family  or  to  other  people.                        Silook  told  the  doctor  that  K.S.  had  



                                                                                                                                

complained of a headache the evening before, and that K.S. had been smacking her lips  



                                                                                                                             

that evening.   Silook also told the doctor about the cerebral contusion that had been  



                                                                                                                              

diagnosed in early August.  But neither Silook nor Ponte told medical personnel that K.S.  



                                                     

had suffered any recent trauma.  



                                                                                                                               

                    Medical testing showed that there was blood in K.S.'s spinal fluid; this  



                                                                                                                                  

prompted the doctor to order a CT scan of K.S.'s brain.  This scan revealed bleeding in  



                                                                                                                               

the left front portion of K.S.'s brain.   An X-ray of K.S.'s chest showed that she had  



                                                                                                                                

pneumonia in both lungs, as well as a collar bone fracture that was about two weeks old  



                                      

- possibly a re-break.  



                                                                                                                                

                    Because of K.S.'s neurological impairment, K.S. was transferred to the  



                                                                                                                             

Alaska Native Hospital in Anchorage.                          By the time K.S. arrived there, she was non- 



                                                                                                                                      

responsive.  She had hemorrhaging in both of her retinas, and she appeared to be blind.  



                                                                                                                             

The doctors at the Native Hospital concluded that K.S. had probably suffered a head  



               

trauma.  



                                                                                                                                 

                    K.S. was discharged from the Native Hospital in early December 2009.  At  



                                                                                                                           

that time, she was still unable to see, but she had become responsive, and she was eating  



                                                                                                                 

on  her  own.          K.S.  was  transferred  to  a  facility  in  Seattle  to  undergo  neurological  



                                                                                                                                      

rehabilitation - relearning to speak, and trying to recover her normal ability to walk.  



                                                                                                                             

                    In August of the following year (2010), after K.S. had regained her sight  



                                                                                                                           

and  had  completed  her  rehabilitative  treatment,  she  was  interviewed  by  a  police  



                                                                                                                             

investigator.  K.S. told the investigator that Ponte had choked her and had held her head  



                                                                                                                               

underwater while he was giving her a bath. K.S. later told her grandfather that Ponte had  



                                                                        

choked her, and that he had spun her around.  



                                                               - 4 -                                                          2552
  


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

                                                                 

          The conduct for which Silook was convicted  



                                                                                                                  

                     Silook spoke twice to Sgt. Joel Smith of the Wasilla Police  Department  



                                                                                                                               

about what had happened to her daughter.  The first interview took place on the day that  



                                                                                                                                

K.S. was hospitalized in Anchorage.   Silook told Smith that she did not know how her  



                                                                                                                              

daughter came to be injured.  Silook falsely told Smith that she, not Ponte, had put K.S.  



                                                                                                                               

to bed that night - and that, other than complaining of a headache, K.S. had been fine  



                                             

when Silook put her to bed.  



                                                                                                                             

                     Silook's second interview with Sgt. Smith took place by telephone three  



                                                                                                                             

days later.  During this second interview, Silook told Smith that her children had been  



                                                                                                                                 

playing outside on the day that K.S. was injured.  She suggested that K.S. might have hit  



                                                                                                                                  

her head on some rocks, or that K.S. might have fallen when she was sledding earlier in  



                                                                                                                          

the day. But Silook again declared K.S. had seemed fine when she put her to bed around  



                  

9:00 p.m.  



                                                                                                                                

                    Later, when Silook testified in front of the grand jury, she admitted that she  



                                                                                                                             

had not been home when K.S. was put to bed that night - and that she had not even  



                                                                                                                                  

looked in on K.S. before she went to bed herself.  Silook testified that Ponte told her to  



                                                                                                                                 

say that K.S. had been injured in a sledding accident, and that K.S. had complained of  



                                       

a headache at bedtime.  



                                                                                                                        

                     Silook told the grand jurors that she  went along with these lies because  



                                                

Ponte was "very controlling".  



                                                                                                                      

                    The  grand  jury  indicted  Silook  for  two  felonies: first-degree  hindering  



                                                                                                                            

prosecution (for lying to Sgt. Smith), and second-degree assault (for failing to take action  



                                                                                                                      

to protect her daughter from serious physical injury at the hands of Ponte).  Following  



                                                                                                                      

a  jury  trial,  Silook  was  acquitted  of  assault,  but  she  was  convicted  of  hindering  



                      

prosecution.  



                                                               - 5 -                                                          2552
  


----------------------- Page 6-----------------------

                                                                                                          

          Did Silook's conduct violate Alaska's hindering prosecution statute?  



                                                                                                                           

                    The  question  we  must  decide  is  whether  Silook's  lies  to  Sgt.  Smith  



                                                                                                                               

constituted the  actus reus  of hindering prosecution - in  other  words,  whether the  



                                                                                         

hindering prosecution statute covers this kind of conduct.  



                                                                                                                   

                    Under AS 11.56.770, a person commits first-degree hindering prosecution  



                                                                                                                           

if they "render assistance" to another person who has committed a felony.  The phrase  



                                                                                                                                 

"renders assistance" is defined in subsection (b) of the statute.   In its prosecution  of  



                                                                                                                          

Silook, the State relied on the third and fourth clauses of this definition.  These clauses  



                                                                                                           

of the statute declare that a person "renders assistance" if the person:  



                      

                                                                                                   

                               (3)   provides   ...   the   other   person   with   money,  

                                                                                                        

                    transportation, a dangerous instrument, a disguise, or other  

                                                                                                   

                    means of avoiding discovery or apprehension; [or]  



                                                                                                

                               (4) prevents or obstructs, by means of ... deception,  

                                                                                                           

                    anyone  from  performing  an  act  which  might  aid  in  the  

                                                                                                

                    discovery or apprehension of the other person[.]  



                                                                                                                                 

                    With regard to subsection (b)(3), the State's theory was that, by lying to  



                                                                                                                      

Sgt. Smith, Silook provided her boyfriend Ponte with a "means of avoiding discovery  



                                                                                                                               

or apprehension".   And with regard to subsection (b)(4), the State's theory was that  



                                                                                                                                

Silook's lies to Sgt. Smith constituted "deception" that  "prevented or obstructed" the  



                                                                                                                                 

police from "performing an act which might aid in the discovery or apprehension" of  



            

Ponte.  



                                                                                                                                

                    As we are about to explain, both of the State's theories of prosecution are  



                                                                                                                                

based on misinterpretations of the statute.  We therefore reverse Silook's conviction for  



                                    

hindering prosecution.  



                                                               - 6 -                                                          2552
  


----------------------- Page 7-----------------------

                                 The origins of, and the policy behind, Alaska's definition of "rendering                                                                                                                                                                                                                            

                                assistance"  



                                                                As explained in the Commentary to the draft of Alaska's current criminal                                                                                                                                                                                                                                              



code,   the definition of "rendering assistance" found in AS 11.56.770(b) is                                                                                                                                                                                                                                                                                                  based on   

                                                                                                                                         1   Both the wording of and the commentary to this Hawai'i  

Hawai'i Statute  710-1028.                                                                                                                                                                                                                                                                                                                                                           



 statute suggest that it was drawn in part from an early version of Model Penal Code   

                                                                                                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                            2  

242.3 ("hindering apprehension or prosecution").  

                                                                                                                                                                                                                                                  



                 1              Alaska   Criminal   Code   Revision,   Tentative   Draft,   Part   4   (1977),   p.   126.     The  



corresponding Hawai'i statute,  710-1028, reads:                                                                                                                                                                                  



                For the purposes of [hindering prosecution in the first and second degrees], a person                                                                                                                                                                                                                                                                                        

renders assistance to another if he:                                                                                                          



                (1)  Harbors or conceals such person;                                                                                                



                (2)  Warns such person of impending discovery, apprehension, prosecution, or conviction,                                                                                                                                                                                                                                                                   

except this does not apply to a warning given in connection with an effort to bring another                                                                                                                                                                                                                                                                                              

into compliance with the law;                                                                                    



                (3)  Provides such person with money, transportation, weapon, disguise, or other means                                                                                                                                                                                                                                                                                         

of avoiding discovery, apprehension, prosecution, or conviction;                                                                                                                                                                              



                (4)  Prevents or obstructs, by means of force, deception, or intimidation, anyone from                                                                                                                                                                                                                                                                                               

performing an act that might aid in the discovery, apprehension, prosecution, or conviction                                                                                                                                                                                                                                                                                

of such person; or                                                     



                (5)  Suppresses by an act of concealment, alteration, or destruction any physical evidence                                                                                                                                                                                                                                                                            

that might aid in the discovery, apprehension, prosecution, or conviction of such person.                                                                                                                                                                                                                                                                                                                     



                2  

                                                                                                                                                                                                                                                                                                                                                                                                                

                                See  the Hawai'i "Commentary on  710-1028 to 1030", which  can  be found on  

                                                                                                                                                                                                                                                                            

Westlaw, appended to the text of Hawai'i Stat.  710-1030.  



                                                                                                                                                                                                     - 7 -                                                                                                                                                                                               2552
  


----------------------- Page 8-----------------------

                                        More specifically, the Hawai'i commentary refers to Model Penal Code                                                                                                                                        



Tentative      208.32,   "Aiding Another                                                                               to   Avoid   Prosecution   or   to   Consummate   [a]  



Crime".   This tentative provision and its accompanying commentary are found in Model                                                                                                                                                            



Penal Code Tentative Draft No. 9 (1959), pp. 194-202. This same early provision of the                                                                                                                                                                     



Model Penal Code is cited by the Alaska Legislature in its commentary to our hindering                                                                                                                                                   



prosecution statute.                                        See   1978 Senate Journal, Supp. No. 47 (June 12), pp. 87.                                                                                                                        



                                        Loosely speaking, Alaska's hindering prosecution statute was intended to                                                                                                                                              



address the same types of societal harm that used to be covered by the common-law                                                                                                                                           



crime of being an "accessory after the fact".                                                                                                 This common-law crime covered any                                                                          



person who, knowing that someone else had committed a felony, "received", "relieved",                                                                                                                                                



"comforted", or "assisted" the felon in order to hinder the felon's "apprehension, trial,                                                                                                                                                             



                                                  3  

or punishment."                                           



                                        Although Alaska's hindering prosecution statutes (AS  11.56.770 - 780)  

                                                                                                                                                                                                                                                    



were intended to further the same general societal interests as the common-law crime of  

                                                                                                                                                                                                                                                              



"accessory after the fact",  the drafters of our criminal code did not intend  Alaska's  

                                                                                                                                                                                                                                         



hindering prosecution statutes to cover the entire range of conduct that would have made  

                                                                                                                                                                                                                                                    



a person liable as an accessory after the fact at common law.  

                                                                                                                                                                                          



                                        This  point   is  expressly  stated  in  the  Legislature's  commentary  to  

                                                                                                                                                                                                                                                            



AS 11.56.770:  "the six methods [of hindering prosecution] described [in the statute]  

                                                                                                                                                                                                                                             



                                                                                                                                                                             4  

present a narrower concept of aid than in common law."  

                                                                                                                                                                                   And this point is discussed  

                                                                                                                                                                                                                                       



more fully in the Commentary to the Alaska Criminal Code Revision, Tentative Draft,  

                                                                                                                                                                                                                                                  



Part 4 (1977), pp. 78-80.  

                                                                              



          3         Rollin M. Perkins & Ronald N. Boyce,                                                                           Criminal Law                              (3rd edition 1982), p. 749.                                                   



          4  

                                                                                                                                                                            

                     1978 Senate Journal, Supp. No. 47 (June 12), pp. 87.  



                                                                                                                            - 8 -                                                                                                                       2552
  


----------------------- Page 9-----------------------

                                                                                                                         

                    As  that  Commentary  explains,  Alaska's  hindering prosecution  statutes  



                                                                                                                          

depart from the common law of "accessory after the fact" in a significant way:  Rather  



                                                                                                                                

than encompassing any and all acts that assist or give comfort to a lawbreaker, the six  



                                                                                                                         

clauses of AS 11.56.770(b) were drafted to establish "the precise acts needed to commit  



                                                                            

[the crime of] hindering prosecution".  Id. , p. 79.  



                                                                                                                                

                    The drafters wrote our statute this way because they wished to endorse the  



                                              

approach of the Model Penal Code:  



                      

                                                                                                        

                               The issue of policy is whether to forbid specific kinds  

                                                                                                          

                    of aid or aid of any character whatsoever.  [The] need to limit  

                                                                                                  

                    the kinds of aid which will be made criminal [is apparent]  

                                                                                                              

                    when we consider the possible application of [this] Section to  

                                                                                                        

                    a person who merely refuses to answer police questions about  

                                                                                                           

                    the  fugitive,  or  gives  misleading  answers,  or  advises  the  

                                                                                                           

                    fugitive to flee, or counsels him as to likely refuges or the law  

                                                                                                           

                    of extradition, or supplies bail.                  Although assistance of this  

                                                                                                              

                    character would appear to fall within the ordinary meaning of  

                                                                                                             

                    the term "aid",  ...  the  courts have shown a reluctance to  

                                                                                                            

                    extend the law so far.  ...  [Because] the community does not  

                                                                                                       

                    desire   prosecution   in   these   situations,   it   would   seem  

                                                                                                             

                    preferable not to use the comprehensive term "aid", but to  

                                                                                                     

                     specify the prohibited forms of aid, as [Alaska's draft statute]  

                              

                    does.  



                                                                                                                           

Alaska Criminal Code Revision, Tentative Draft, Part 4 (1977), p. 80, quoting Model  



                                                                                                                                

Penal Code, Tentative Draft No. 9 (1959),  208.32, Commentary at pp. 199-200.  



                                                                                                                                 

                    (An even more  comprehensive discussion of this point - the policy of  



                                                                                                                                  

limiting the types of acts that will make a person liable for hindering prosecution - is  



                                                                                                                            

found in the Commentary to the Official Draft of the Model Penal Code:  Model Penal  



                                                                                                                  

Code and Commentaries (1980), Part II,  240.0 to 251.4, pp. 230-36.)  



                                                               - 9 -                                                          2552
  


----------------------- Page 10-----------------------

                                In sum, our definition of "renders assistance" was intended to codify the                                                                                               



Model Penal Code's approach of narrowing the scope of prosecution from what it had                                                                                                                   



been at common law.                                   Rather than reaching all acts that comfort or assist a lawbreaker,                                                          



our hindering prosecution statute requires proof                                                                       of the specific types of acts listed in                                             



AS 11.56.770(b).                            



                The definition of "render assistance" in subsection (b)(3) of the statute                                                                                       

                                                                                                                                                                          

                refers only to tangible forms of assistance - i.e., physical or material  

                assistance  



                                                                                                                                                                                                       

                                As we explained earlier, one of the State's theories of prosecution in this  



                                                                                                                                                                                                           

case was that, when Silook lied to Sgt. Smith about when and how her daughter came to  



                                                                                                                                                                                                  

be injured, Silook "rendered assistance" to her boyfriend Ponte under subsection (b)(3)  



                                                                                                                                                                                          

of  the  statute  -  the  provision  that  encompasses  providing a  person  with  "money,  



                                                                                                                                                                                        

transportation, a dangerous instrument, a disguise, or other means of avoiding discovery  



                                                                                               

or apprehension".  (Emphasis added.)  



                                                                                                                                                                                                            

                                The  State's  prosecution  of  Silook  under  subsection  (b)(3)  rested  on  a  



                                                                                                                                                                                          

mistaken  interpretation  of  this  provision.                                                              Subsection  (b)(3)  is  limited  to  tangible  



                                                                                                                                                                                        

assistance to a lawbreaker - i.e., physical or material assistance - and not assistance  



                                                  

by deceptive words.  



                                                                                                                                                                                               

                                Subsection (b)(3) of our statute is a slight variation from Hawai'i Statute  



                                                                                                                                                                                                                  

 710-1028(3), which in turn was a slight variation from Model Penal Code  242.3(2).  



                                                                                                                                                                                                          

The Model Penal Code provision covers  situations where a defendant "provides [a  



                                                                                                                                                                                         

criminal]   with  a  weapon,   transportation,   disguise  or   other   means  of   avoiding  



                                                                                     

apprehension or effecting escape".  



                                                                                                                                                                                                   

                                The Commentary accompanying this provision of the Model Penal Code  



                                                                                                                                                                                                                 

clarifies that this language was not intended to cover a person who lies to the police.  



                                                                                                 -  10 -                                                                                              2552
  


----------------------- Page 11-----------------------

Rather, this language was intended to cover only "tangible forms of assistance".                                                                                                                                                                                                Model  



Penal Code and Commentaries                                                                                  (1980), Part II,  240.0 to 251.4, p. 234.                                                                                                        



                                              Although the wording of AS 11.56.770(b)(3) differs somewhat from the                                                                                                                                                                            



wording of Model Penal Code  242.3(2), there is nothing in the text or history of the                                                                                                                                                                                                        



Alaska provision to suggest that the drafters of our statute intended to depart from the                                                                                                                                                                                                     



Model Penal Code's decision to limit the                                                                                                         scope   of   this provision to the rendering of                                                                                                



 tangible  aid.   



                                               Subsection (3) of our statute declares that a defendant "renders assistance"                                                                                                                                         



to a person who has committed a crime if the defendant "provides ... the other person                                                                                                                                                                                            



with   money,   transportation,   a   dangerous   instrument,   a   disguise,   or   other   means   of  



 avoiding   discovery   or   apprehension".     The   components   of   this   list   -   "money",  



"transportation", "dangerous instrument", or "disguise" - are all consistent with the                                                                                                                                                                                                        



Model Penal Code's aim                                                              of punishingpeople                                                 who provide physical                                                     or material                           assistance  



to a criminal.                                  



                                              And because the list in subsection (3) of our statute refers to different types                                                                                                                                                          



 of physical or material aid, the principle of                                                                                                   ejusdem generis                                            counsels us to interpret the                                                      



 concluding phrase                                               -   "other   means   of   avoiding discovery                                                                                                    or   apprehension"   -   as  



likewise   referring   to   physical   or   material   aid,   and   not   the    act   of   lying   to   the  



                                       5  

 authorities.        



                                              This  interpretation  of  subsection  (3)  is  bolstered  by  the  fact  that  this  

                                                                                                                                                                                                                                                                                           



 subsection, by its very terms, applies only to people who "provide" a felon with the listed  

                                                                                                                                                                                                                                                                                       



 forms of aid.   The use of the verb "provide" likewise  suggests that subsection (3) is  

                                                                                                                                                                                                                                                                                                  



 aimed at people who give physical or material aid to the criminal - not people who tell  

                                                                                                                                                                                                                                                                                              



lies to the authorities.  

                                                                           



            5          See Sapp v. State                                         , 379 P.3d 1000, 1002 (Alaska App. 2016).                                                                                                     



                                                                                                                                            -  11 -                                                                                                                                        2552
  


----------------------- Page 12-----------------------

                                                                                                             

                     We thus conclude, both from the legislative history of AS 11.56.770(b)(3)  



                                                                                                                                   

and from the wording of the statute itself, that the State's interpretation of the statute is  



                                                                                                                                       

wrong.        This  subsection  of  the  statute  is  limited  to  the  furnishing of  tangible  aid.  



                                                                                                                            

Because Silook did not render tangible aid to Ponte, she  could not lawfully be found  



                                                                              

guilty of "rendering aid" under subsection (b)(3).  



                                                                                                                             

                     At Silook's trial, the jury was told that they could find Silook guilty under  



                                                                                                                             

either subsection (b)(3) or subsection (b)(4) of the statute.  And the jury was not asked  



                                                                                                                           

to indicate which subsection  their verdict was based on.                                    Thus,  even if the State's  



                                                                                                                                  

misinterpretation of subsection (b)(3) were the only flaw in the State's prosecution of  



                                                                                                                               

Silook,  we  would  have  to  reverse  Silook's  conviction  and  declare  that  Silook  was  



                                   

entitled to a new trial.  



                                                                                                                             

                     But  there is a separate flaw in the State's theory of prosecution under  



                                                   

subsection (b)(4) of the statute.  



                                                                                                                       

                (b) The definition of "renders assistance" in subsection (b)(4) does not  

                                                                                              

               cover the lies that Silook told to the police in this case  



                                                                                                                     

                     Subsection (b)(4) of the statute declares that the phrase "renders assistance"  



                                                                                                                                 

means "prevents or obstructs, by means of ... deception, anyone from performing an act  



                                                                                                               

which might aid in the discovery or apprehension of the other person".  



                                                                                                                      

                     The Model Penal Code does not contain a provision like our subsection  



                                                                                                                             

(b)(4).  Instead, the Model Penal Code contains a provision that seemingly applies much  



                                                                                                                            

more directly to Silook's conduct.  Model Penal Code  242.3(5) declares that a person  



                                                                                                                    

commits the crime of "hindering apprehension or prosecution" if the person "volunteers  



                                                                                                                  

false information to a law enforcement officer." But the ModelPenalCode Commentary  



                                                                                                                                 

to   subsection   (5)   expressly   declares   that   this   provision   is   strictly                              limited   to  



                                                              -  12 -                                                         2552
  


----------------------- Page 13-----------------------

                                                                                                                    

"volunteering" false information to the authorities - i.e., providing the false information  



unsolicited:  



                       

                                                                                                           

                     Mere  failure  to  report  a  crime  is  not  proscribed  by  this  

                                                                                                     

                     section.   Neither is giving misleading or even false answers  

                                                                                                            

                     to inquiries initiated by the police.  ...  Paragraph (5) of this  

                                                                                                             

                     [section] proscribes only ... volunteered misinformation to the  

                                   

                     police[.]  



                                                                                                                       

Model Penal Code and Commentaries (1980), Part II,  240.0 to 251.4, p. 235.  



                                                                                                                                 

                     In other words, the drafters of the ModelPenal Code expressly decided not  



                                                                                                                     

to criminalize the kind of conduct that Silook engaged in:  giving false  or  misleading  



                                                                   

answers during a police-initiated interview.  



                                                                                                                            

                     Because Alaska's subsection (4) is worded so differently from the Model  



                                                                                                                             

Penal Code provision, it is arguable that the drafters of our criminal code wanted to enact  



                                                                                                                      

a broader provision that would also cover lies told during a police-initiated interview.  



                                                                                                                       

But we have found nothing in the legislative history of our statute, or in the legislative  



                                                                                                                                  

history  of  Hawai'i  Stat.    710-1028  (the  immediate  precursor  of  our  statute),  to  



                                                                                                                                 

convincingly demonstrate that the drafters of our  statute intended to depart from the  



                                                                    

Model Penal Code's approach to this issue.  



                                                                                                                                 

                     We have, however, found a number of cases from other states in which the  



                                                                                                                                

courts interpreted statutory language almost identical to our  subsection (b)(4) - and  



                                                                                                                             

these cases generally limit the scope of this statutory language so that it does not apply  



                                                                                                                               

to the facts of Silook's case.  These states reach this result in two different ways.  



                                                                                                                             

                     The first group of courts emphasizes that the language of subsection (b)(4)  



                                                                                                                                 

requires  the  government  to  prove  that  the  defendant's  conduct  "prevented"  or  



                                                                                                                                  

"obstructed" the police from "performing an act" that might aid in the discovery or  



                                                                                                                             

apprehension of the person who committed the crime.  These courts hold that even when  



                                                              -  13 -                                                         2552
  


----------------------- Page 14-----------------------

the   government   proves   that   a   defendant   lied   to   the   police,   the   government   must  



additionally prove that the defendant's lies actually altered the course of the investigation                                                                                                  



-  by preventing or obstructing the police from performing an investigative act that they                                                                                                                          



otherwise would have performed.                                                         



                                  For instance, Washington Statute  9A.76.050(4) declares that                                                                                                       a   person  



"renders criminal assistance" if the person                                                                        "prevents or obstructs,                                         by use of force,            



deception, or threat, anyone from performing an act that might aid in the discovery or                                                                                                                                   



apprehension of [a person who is being sought for a crime]".                                                                                             In  State v. Budik                         , 272 P.3d     



816 (Wash. 2012), the defendant was a shooting victim who was convicted of hindering                                                                                                                   



prosecution under this clause of the statute because he repeatedly lied to the investigating                                                                                                   



                                                                                                                                                                                                                            6  

officers by telling them that he did not know the identity of the people who shot him.                                                                                                                                          



                                   The Washington Supreme Court overturned the defendant's conviction, in  

                                                                                                                                                                                                                          



part because the government failed to show that Budik's lies prevented or obstructed the  

                                                                                                                                                                                                                      



police from performing some act that would have aided their discovery or apprehension  

                                                                                                                                                                                            



of the shooters:  

                                          



                                    

                                                    [T]here is no evidence in the record that Budik's false  

                                                                                                                                                                                

                                   statements ... prevented or obstructed any act.   [Subsection  

                                                                                                                                                             

                                   (4)  of  our  statute  covers]  "deception"  that  "[p]revents  or  

                                                                                                                                                                                      

                                   obstructs" certain acts ... .   The relevant question therefore  

                                                                                                                                                                     

                                  becomes whether some act would have been performed but  

                                                                                                                                                                                    

                                 for  the [defendant's] false statement.  If not, it cannot be said  

                                                                                                                                                                                  

                                  that the [defendant's] deception prevented or obstructed an  

                                                                                                                                                                                      

                                   act that might aid in the discovery or apprehension of another  

                                                                                                                                                                         

                                  person.  

                                                       

                                                    .    .     .  

                                                           



                                   There  is  simply  no  evidence  in  the  record  that[,]  but  for  

                                                                                                                                                                                    

                                  Budik's false disavowal of knowledge of the identity of the  

                                                                                                                                                                                    



         6       Id.  at 818-820.                       



                                                                                                        -  14 -                                                                                                     2552
  


----------------------- Page 15-----------------------

                                                                                               

                     shooters[,] anyone would have "perform[ed] an [additional]  

                                                                                                             

                     act that might aid in the discovery or apprehension" of one of  

                                                                                                   

                    the shooters. ...   [Thus], there is no evidence that  Budik's  

                                                                                                           

                     deception ... caused the prevention or obstruction of any act.  



                                                                              

Budik, 272 P.3d at 822 (emphasis in the original).  



                                                                                                                                 

                     The  Missouri  Court  of  Appeals  reached  the  same  result  in  State  v.  



                                                                       

McMasters, 815 S.W.2d 116, 118 (Mo. App. 1991):  



                      

                                                                                                       

                               There is no question that defendant lied to the police  

                                                                                                           

                     concerning the location of [the suspect,] Cowart.                              But the  

                                                                                                  

                     statute does  not  make lying alone a crime.   The deception  

                                                                                                            

                    must prevent or obstruct the police from performing an act  

                                                                                                              

                     aiding in the discovery or apprehension of Cowart.  There is  

                                                                                                           

                    no evidence in the record that defendant's statement had any  

                                                                                                          

                     effect at all on the police conduct. They did not divert their  

                                                                                                  

                     surveillance  or  attempt  to  locate  Cowart  at  a  different  

                                                                                                           

                     location.   There  is  no testimony that[,] had defendant told  

                                                                                                

                    them  of  Cowart's  location[,]  they  would  have  conducted  

                                                                                                    

                    themselves any differently than they did.   ...   The  officers  

                                                                                                 

                    testified they placed no  reliance on defendant's statement,  

                                                                                                             

                    they did nothing different, and they were not obstructed or  

                                                                                                        

                    prevented from doing anything by the statement.   In short,  

                                                                                                             

                    there  was  no  evidence  that  the  police  were  prevented  or  

                                                                                                   

                     obstructed from doing anything by defendant's lie.  



                                                                                                                            

For another decision adopting this construction of the statutory language, see Ex parte  



                                                                     

Burton, 783 So.2d 887, 891-93 (Ala. 2000).  



                                                                                                                                 

                     In  Silook's  case,  the  State  presented  no  evidence  that  Silook's  lies  to  



                                                                                                                             

Sgt. Smith actually altered the course of the police investigation into the assault on K.S.,  



                                                                                                                               

by preventing or obstructing the authorities from performing an investigative act that  



                                                             

they otherwise would have performed.  



                                                              -  15 -                                                         2552
  


----------------------- Page 16-----------------------

                             The second                   group of courts limits the scope of the language found in                                                                



 subsection   (b)(4)   by   emphasizing the                                           concluding part                    of   the   clause:     "prevents   or  



 obstructs   ...   anyone   from   performing an                                            act   which   might   aid   in   the   discovery   or  



 apprehension   of   the   other   person".     These   courts   interpret   the   statutory   phrase  



 "discovery ... of the other person" as referring only to the person's whereabouts (                                                                                          i.e.,  



 their physical location) - and                                 not  to proof of the person's connection to, or involvement                                   



 in, the crime being investigated.                                   



                             For   example,   Oregon   has   a   hindering prosecution                                                     statute   that   contains  

                                                                                                             7    In State v. Werdell, 136 P.3d 17  

 language virtually identical to our subsection (b)(4).                                                                                                                           



 (Or. 2006), the Oregon Supreme Court concluded that the statutory phrase "discovery  

                                                                                                                                                                 



 or apprehension of such person" refers solely to the discovery of the whereabouts of the  

                                                                                                                                                                                 



 person who has committed the crime - and that this language does not cover instances  

                                                                                                                                                                    



 where "[a] defendant suppressed evidence that might have aided in the discovery of the  

                                                                                                                                                                                 



fact that such a person had committed a crime ." Id. at 20-21 (emphasis in the original).  

                                                                                                                                                                                        



                               

                                           The "discovery" with which [our statute] is concerned  

                                                                                                                                      

                             is the discovery of a particular "person who has committed a  

                                                                                                                                                         

                             crime punishable as [a] felony."  Those words will not stretch  

                                                                                                                                              

                             to cover the "discovery ... that a known person has committed  

                                                                                                                                     

                             a crime punishable as a felony."  

                                                                                                  



  Werdell, 136 P.3d at 20.  

                                                       



                             And more recently, the Alabama Court of Criminal Appeals likewise held  

                                                                                                                                                                               



 that the statutory phrase "discovery ... of the other person" refers solely to the discovery  

                                                                                                                                                                   



 of  a person's physical location  - "finding or locating [the] person" - and that this  

                                                                                                                                                                               



 statutory language "does not include identifying such person as being involved with or  

                                                                                                                                                                                  



        7      Oregon Stat.  162.325(1)(e).                                 



                                                                                      -  16 -                                                                                 2552
  


----------------------- Page 17-----------------------

                                                                                                                           

connected to the committingof a crime".  Collier v. State, __ So.3d __ (Ala. Crim. App.,  



                                                                       

October 2, 2015), 2015 WL 5773852 at *12.  



                                                                                                                                

                    To sum up this discussion: Our hindering prosecution statute appears to be  



                                                                                                                           

drawn from the Model Penal Code (by way of the Hawai'i statutes).  The Model Penal  



                                                                                                                               

Code version of this offense was expressly drafted to ensure that the act of lying to the  



                                                                                                                     

police during a police-initiated interview would not constitute the offense of hindering  



                                                                                                                      

prosecution.   Even though subsection (b)(4) of our statute contains different language  



                                                                                                                     

from the corresponding Model Penal Code provision, there is nothing in the legislative  



                                                                                                                          

history of our statute to demonstrate that our drafters intended to repudiate the Model  



                                                                     

Penal Code approach to this particular issue.  



                                                                                                                               

                    Moreover,  among the states having statutory language that  mirrors the  



                                                                                                                        

language of AS 11.56.770(b)(4), several of those courts have interpreted their statutes  



                                                                                                                         

in ways that would not allow Silook to be convicted for lying to the police in the present  



                                                                                                                    

case - either because the State did not show that Silook's lies prevented or obstructed  



                                                                                                                   

the police from performing investigative acts that they otherwise would have performed,  



                                                                                                                       

or  because  Silook's  lies  did  not  impede  the  authorities'  ability  to  ascertain  Ponte's  



                                                                                                                               

physical  whereabouts (as opposed to Ponte's connection to,  or involvement in,  the  



                                             

underlying assault on K.S.).  



                                                                                                                           

                    We need not decide which of these  interpretations of subsection (b)(4)  



                                                                                                                                

should be adopted in Alaska - because, under any of them, the State's prosecution of  



                               

Silook was flawed.  



                                                             -  17 -                                                         2552
  


----------------------- Page 18-----------------------

                                    Conclusion  



                                                                      The State's prosecution of Silook was based on misinterpretations of both                                                                                                                                                                                                                                                                                              



 subsection (b)(3) and subsection (b)(4) of the first-degree hindering prosecution statute,                                                                                                                                                                                                                                                                                                                                    



AS 11.56.770.                                                                 We therefore REVERSE the judgement of the superior court.                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                    -  18 -                                                                                                                                                                                                                   2552
  

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