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Coleman v. State (10/13/2017) ap-2571

Coleman v. State (10/13/2017) ap-2571

                                                    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  



JAMES  KEVIN  COLEMAN  (aka  JAMES  

KEVIN  ALMUDARRIS),                                               Court of Appeals No. A-11909
  

                                                                 Trial Court No. 3AN-12-6523 CR
  

                                   Appellant,  

                          v.  

                                                                             O P I N I O N
  

STATE OF ALASKA,  



                                   Appellee.                       No. 2571 - October 13, 2017
  



                                     

                  Appeal   from  the  Superior  Court,  Third  Judicial  District,  

                  Anchorage, Stephanie E. Joannides, Judge.  



                  Appearances:  Sharon  Barr,  Assistant  Public  Defender,  and  

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                     

                  A. James Klugman, Assistant District Attorney, Anchorage, and  

                  Craig W. Richards, Attorney General, Juneau, for the Appellee.  

                                                       



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

                                                      

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).  


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

                                                                 1  

                        James Kevin Coleman                        was convicted, following a jury trial, of second-                          



degree   burglary,   second-degree   theft,   and   fifth-degree   criminal   mischief   based   on  



allegations that he broke into a storage shed used by a commercial bike shop and stole                                                              



                        2                                                                                                   3  

                                                                                                                 

two bicycles.               Coleman was also convicted of making a false report. 



                        Onappeal, Coleman challenges hisconvictionfor burglary, arguing that the  

                                                                                                                                                       



bicycle  storage  shed  was  too  small  to  qualify  as  a  "building"  for  purposes  of  the  

                                                                                                                                                              



burglary statutes. Coleman further contends that there was insufficient evidence that he  

                                                                                                                                                        



was the person who broke into the shed and stole the bicycles, and that the trial court  

                                                                                                                                                   



erred  in  denying  his  motion  for  a  new  trial  based  on  the  weight  of  the  evidence.  

                                                                                                                                                              



Coleman also challenges his conviction for making a false report, arguing that his false  

                                                                                                                                                    



statement  to  the  police  did  not  qualify  as  a  false  "report"  of  a  crime  under  

                                                                                                                                                



AS 11.56.800(a)(2).  

                                       



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

                                                                                                                                               



storage shed qualified as a "building" as that term is defined in the burglary statutes. We  

                                                                                                                                                       



also conclude that the evidence supporting Coleman's burglary, theft, and criminal  

                                                                                                                                             



mischief convictions was legally sufficient, and that the trial court did not err in denying  

                                                                                                                                              



Coleman's motion for a new trial.  However, we conclude that there was insufficient  

                                                                                                                                        



evidence to convict Coleman of making a false report, given the nature of his false  

                                                                                                                                                   



statement to the police and the circumstances under which that statement was made.  

                                                                                                                                             



      1     The  appellant's  legal   name  appears  to  be  James  Kevin  Almudarris,  and  this  is  



reflected in the judgment. However, his birth name appears to be James Kevin Coleman, and   

he was referred to as "James Kevin Coleman" at trial.  For the sake of consistency, we will   

refer to the appellant as "Coleman."  



      2  

                    

            AS  11.46.310(a);  AS  11.46.130(a)(1);  and  former  AS  11.46.486(a)(2)  (2012),  

respectively.  



      3     AS 11.56.800(a)(2).  



                                                                          - 2 -                                                                    2571
  


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

                    Accordingly,weaffirmColeman'sconvictionsfor second-degreeburglary,  

                                                                                                                       



second-degree theft, and fifth-degree criminal mischief, and we reverse his conviction  



for making a false report.  

                              



           Why we conclude that the bicycle storage shed was large enough to qualify  

                                                                                                                

          as a "building" for purposes of Alaska's burglary statute  

                                                                                         



                    Under AS 11.46.310(a), a person commits burglary if the person "enters or  

                                                                                                                                  



remains unlawfully in a building with the intent to commit a crime in the building."  

                                                                                                                                      



Alaska Statute 11.81.900(b)(5) defines "building," in pertinent part, as follows:  

                                                                                                              



                    "building," in addition to its usual meaning, includes any  

                                                                                                          

                    propelled         vehicle   or        structure   adapted   for              overnight  

                                                                                                

                    accommodation of persons or for carrying on business[.]  

                                                                                            



                    In the current case, Coleman was convicted of second-degree burglary for  

                                                                                                                                



breaking into a shed that was used to store bicycles for a business.  The shed was a  

                                                                                                                                   



permanent wooden structure with four walls, a floor, and a roof; it contained multiple  

                                                                                                     



enclosed storage lockers, secured by individual padlocks. Although the record does not  

                                                                                                                                



reveal the exact dimensions of the shed, the evidence presented at trial indicated that the  

                                                                                                                                



shed was approximately chest- to shoulder-high, and the shed could contain 20 to 25  

                                                                                                                                 



bicycles. To enter the shed to retrieve the bicycles, an average-sized person would need  

                                                                                                                              



to stoop.  

     



                    At trial, the general manager of the bicycle shop testified that the shed was  

                                                                                                                               



used to store bicycles that were brought in for repairs. On an average summer work day,  

                                                                                                                               



5 to 6 employees would access the shed to retrieve or store bicycles.   The manager  

                                                                                                                       



testified that employees would typically not need to fully enter the shed to retrieve the  

                                                                                                                                



bicycles, but that they would sometimes have to crawl all the way into the shed if they  

                                                                                                                              



were having difficulty getting a bicycle out.  The entrance to each storage locker in the  

                                                                                                                                



shed was kept secured with a padlock and equipped with a break-in alarm.  

                                                                                                         



                                                              -  3 -                                                        2571
  


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

                                           On appeal, Coleman argues that the shed did not qualify as a "building" for                                                                                                                                                      



purposes of the burglary statute.                                                                       Coleman contends that, because the crime of burglary                                                                                              



was originally intended to protect dwellings, a structure can only qualify as a "building"                                                                                                                                                       



for purposes of the burglary statute if it is either designed for human habitation or large                                                                                                                                                                          



enough to "comfortably accommodate people moving around" in it.                                                                                                                                                                         According to   



Coleman, because the shed was made to accommodate bicycles and not people, and                                                                                                                                                                                           



because an average-sized person would need to stoop to enter the shed, the shed did not                                                                                                                                                                                    



qualify as a "building," and his conviction for second-degree burglary must be reversed.                                                                                                                                                                



                                           In response, the State argues that the bicycle storage shed was a building  



both in the "usual meaning" of the word and because the shed was a structure that had                                                                                                                                                                                     



been "adapted" for carrying on the bicycle shop's business - specifically, the storing   



and repairing of bicycles.  The State concedes, however, that "at some point, a storage  

                                                                                                                                                                                                                                                           



unit [may be] so small that it could not reasonably be considered 'a structure,'" and as  

                                                                                                                                                                                                                          



such, would not be "a building."                                        



                                           The issue presented here is, therefore, how large a structure must be in  

                                                                                                                                                                                                                                                                              



order to be considered a "building" for purposes of the burglary statute.  Because the  

                                                                                                                                                                                                                                                                           



statute is ambiguous on this point, we look to the purpose of the legislation and the  

                                                                                                                                                                                                                                                                           

legislative history for indications of legislative intent.4  

                                                                                                                                                        



                                                                                                                                                                                                                                                                       

                                           Thedefinition of"building"codified in AS11.81.900(b)(5) is derived from  



                                        5  

                                                                                                                                                                                                                                                         

Oregon law.                                  Both Alaska and Oregon define "building" broadly, and the two statutory  



                                                                                                                                                                                                                                                                

definitions of "building" are essentially the same.  As already set out, the Alaska statute  



                                                                                                                                                                                                                                                                              

defines "building" to include "its usual meaning" as well as "any propelled vehicle or  



           4         See Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1234 (Alaska 2003).  



           5         See Timothy v. State                                          , 90 P.3d 177, 178 (Alaska App. 2004); Austin v. State , 883 P.2d  



992, 993 (Alaska App. 1994).  



                                                                                                                                   - 4 -                                                                                                                             2571
  


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

                                                                                                                                              6  

structure adapted for overnight accommodation of persons or for carrying on business."                                                            



                                                                                                                                  

Likewise, under the Oregon statute, "building" is defined "in addition to its ordinary  



                                                                                                                                    

meaning" as also including "any booth, vehicle, boat, aircraft or other structure adapted  



                                                                                                                                 7  

                                                                                                                    

for overnight accommodation of persons or for carrying on business therein." 



                                                                                                                                           

                      The  legislative  history  of  these  statutory  definitions  indicates  that  the  



                                                                                                                                         

Alaska and the Oregon legislatures intended these definitions to be expansive.   The  



                                                                                                                                            

commentary to the tentative draft of Alaska's 1978 criminal code revision states that the  



                                                                                                                                    

definition is intended to be "broad enough to include house trailers, mobile field offices,  



                                                                                          8  

                                                                                                                                    

house boats, vessels and even tents used as dwellings."                                     The commentary to the Oregon  



                                                                                                                                            

Criminal Code likewise explains that the definition of "building" was expanded from the  



                                                                                                                                   

"ordinary meaning of the word" so as to also include "those structures and vehicles  



                                                                                                                                         

which typically contain human beings for extended periods of time, in accordance with  



                                                                                                                      

the original and basic rationale of the crime [of burglary]:  protection against invasion  



                                                                      9  

                                                   

of premises likely to terrorize occupants." 



                                                                                                                                    

                      Coleman relies heavily on the Oregon commentary for his claim that the  



                                                                                                                                         

Oregon and Alaska legislatures intended to limit the definition of "building" to only  



                                                                                                                                    

those vehicles or structures that "typically contain human beings for extended periods  



                                                                                                                                    

of time."  But neither the plain language of the statute nor the legislative history support  



        

this claim.  



      6    AS 11.81.900(b)(5).  



      7    Or. Rev. Stat.  164.205(1).  



      8    See  Alaska Criminal Code Revision, Tentative Draft, Part III, at 51 (1977) ("Offenses  



Against Property").  



      9    See State v. Scott, 590 P.2d 743, 744 (Or. App. 1979) (quoting Commentary,  Proposed  



Oregon Criminal Code (1970),  135 at 143).  



                                                                    - 5 -                                                               2571
  


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

                        At common law, the crime of burglary required proof that the defendant                                            



unlawfully   entered   a   human   habitation.   Burglary   was   defined   as   the   breaking   and  



                                                                                                                              10  

entering of a dwelling at night with the intent to commit a crime therein.                                                                 

                                                                                                                                  The common- 



                                                                                                                                              

law offense of burglary was therefore strictly an offense aimed at protecting the security  



                                                             11  

                                             

of habitation rather than property. 



                                                                                                                                           

                        Butstatutory enactments over thepast 60 years havechanged and expanded  



                                                                                                                                                      

the common-law definition of the offense.  For most jurisdictions, the requirement that  



                                                                                                                                                         12  

                                                                                                                                                              

the crime take place at night or that it be directed at a dwelling have disappeared. 



                                                                                                                                          

Instead, most states (including Alaska and Oregon) now define burglary simply  as  



                                                                                                                                                  

unlawfully entering or remaining in a "building" with the intent to commit a crime  



              13  

therein.                                                                                                                                  

                     The  offense  is  elevated  to  a  higher  degree  of  burglary  with  increased  



                                                                                                                                                          

punishment if the "building" is a "dwelling" or  if  the defendant's conduct poses a  



                                                                                                 14  

                                                                                 

particular danger to people found within the building. 



      10    See Rollin M. Perkins & Ronald N. Boyce,                                  Criminal Law  (3d ed. 1982) at 246, 255- 



56.  



      11    Id . at 255-56.  



      12    See, e.g., Alaska Criminal Code Revision, Tentative Draft, Part III, at 55 (1977)  



                                                                                                                            

("Offenses Against Property") ("The traditional definition of burglary has been gradually  

                                                                                                                                   

expanded over the years to include acts which would not have been burglary in the common  

law sense.").  



      13  

                                                                              

            See AS 11.46.310(a); Or. Rev. Stat.  164.215; see also former AS 11.20.100 (1970)  

                                                                                                                      

(differentiating between "burglary of dwelling house" and "burglary not in dwelling house"  

                                                                                                                                                      

and defining the latter as including "a building or part of it, or a booth, tent, railway car,  

vessel, boat, or other structure or erection in which property is kept") (emphasis added).  



      14    See AS 11.46.300(a)(2) (elevating second-degree burglary to first-degree burglary if  

                                                                                                                                                          

the building is a dwelling, if the person is armed with a firearm, if the person causes or  

                                                                                                                        

attempts  to  cause  physical  injury,  or  the  person  uses  or  threatens  to  use  a  dangerous  

                                                                                                                                     (continued...)  



                                                                          -  6 -                                                                   2571
  


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

                         This transformation is evident in the relevant Oregon caselaw, which has                                                          



upheld burglary convictions involvingstoragesheds andstoragecontainers,                                                                   even though   



                                                                                                              15  

they were designed to accommodate property, not people.                                                                                                       

                                                                                                                   For example, in State v.  



                                                                                                                                                               

Essig, the Oregon Court of Appeals held that a large potato storage shed qualified as a  



                                                                                                                                                               

building under the burglary statute, describing it as a substantial structure and thus a  



                                                                                             16  

                                                                                                                                                           

building within the ordinary meaning of the term.                                                 Similarly, in State v. Handley, the  



                                                                                                 

Oregon Court of Appeals held that a storage locker in an apartment complex's carport  



                                           17  

                                                                                                                                                    

qualified as a building.                        In State v. Barker, the court held that "self-contained storage  



                                                                                                                                 18  

                                                                                                                                                              

units" within a commercial storage facility qualified as "buildings,"                                                                and in State v.  



                                                                                                                                                  

 Webb, the court held that a tractor trailer adapted by a business to store goods likewise  



                                               19  

                           

qualified as a "building." 



                                                                                                                                              

                         Coleman points out that these Oregon cases all involve storage containers  



                                                                                                                                                                   

or sheds that are considerably larger than the bicycle storage shed involved in his case.  



                                                                                                                                                              20  

                                                                                                                                                                   

                                                                                                                                                

For example, the potato shed in Essig was large enough to "contain several trucks." 



                                                                                                                                                         

Likewise, the tractor trailer in Webb was twenty-five feet long and eight to nine feet wide  



       14    (...continued)  



instrument).  



       15   See, e.g.,  State v. Webb, 324 P.3d 522, 525 (Or. App. 2014); State v. Handley, 843  



P.2d 456, 456-57 (Or. App. 1992); State v. Barker, 739 P.2d 1045, 1046-47 (Or. App. 1987);  

State v. Essig, 571 P.2d 170, 171 (Or. App. 1977).  



       16   Essig, 571 P.2d at 171.  



       17   Handley, 843 P.2d at 456-57.  



       18   Barker, 739 P.2d at 1046-47.  



       19    Webb, 324 P.3d at 524.  



      20  

                                                       

            Essig, 571 P.2d at 171.  



                                                                            -  7 -                                                                     2571
  


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

                                                       21  

(although no height was listed).                           But not all of the Oregon cases involve such large                             



storage structures.  The storage lockers in                             Handley were only four feet wide, nine feet                 



                                             22  

long, and seven feet high.                                                                                                                

                                                  And the dimensions of the storage unit in Barker  were  



                                                                                                                                       

essentially unknown, although the court noted that it was "large enough for a human  



                                                      23  

                                           

being to enter and move about." 



                                                                                      24  

                                                                                                                                     

                       Coleman also relies on State v. Scott,                             a 1979 Oregon Court of Appeals  



                                                                                                                                     

case in which the court reversed a conviction for burglary of a railway boxcar because  



                                                                                                                                   

it concluded that the boxcar did not qualify as a "building" for purposes of Oregon's  



                                                                                                                                  

burglary statute.   In  Scott, the court quoted the legislative commentary to Oregon's  



                                                                                                                                            

burglary statute, noting that the expanded definition of "building" under the statute was  



                                                                                                                                       

still intended to comport with "the original and basic rationale for the protection against  



                                                                                    25  

                                                                                                                                             

                                                                                         The court therefore concluded that  

invasion of premises likely to terrorize occupants." 



                                                                                                                                   

the railway boxcar did not fit the expanded definition because there was no evidence  



                                                                                                                                               

presented at trial that the boxcar had been adapted "for carrying on business therein" or  



                                                                                                                                       

"for accommodating people overnight" and there was nothing to indicate that the boxcar  



                                                                                                                                        

was anything other than "a structure on wheels designed for the storage of goods during  



                                   26  

          

their transportation." 



      21    Webb, 324 P.3d at 524.  



      22   Handley, 843 P.2d at 456.  



      23   Barker, 739 P.2d at 1047.  



      24   590 P.2d 743 (Or. App. 1979).  



      25   Id.  at 744 (quoting Commentary, Proposed Oregon Criminal Code (1970),  135 at                               



143).  



      26   Id.  



                                                                     -  8 -                                                              2571
  


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

                      We conclude that Coleman's reliance on  Scott is misplaced.  Subsequent  



Oregon Court of Appeals cases have narrowed                                    Scott  to its facts, explaining that                   Scott  



involved   a   movable   structure   on   wheels   akin   to   a   vehicle,   rather   than   a   stationary  



                                                                                                                   27  

                                                                                                                                

structure that could fit into the ordinary meaning of the term "building."                                             The reasoning  



                                                                                                                                  

of Scott has also been criticized.  In Barker, for example, the Oregon Court of Appeals  



                                                                                                                                   

rejected the premise that a court must examine the primary uses of the storage units at  



                                                                                                                                         

issue "to determine whether an unauthorized entry would be likely to terrorize any  



                                28  

                                                                                                                                        

human occupants."                    Instead, the court looked to the "ordinary meaning" of the term  



                                                                                                                              

"building," as evidenced by various dictionary definitions of the term - ultimately  



                                                                                                                                       

concluding that the storage units at issue qualified as "buildings" in the "ordinary sense  



                                                                                                                                           

of the word" because they were part of a "roofed and walled structure constructed for  



                           29  

                   

permanent use." 



                                                                                                                                         

                      Like the storage units in Barker, the storage shed at issue in Coleman's case  



                                                                                                                                       

appears  to  fit  within  the  dictionary  meaning  of the  term "building."                                             Black's  Law  



                                                                   

Dictionary defines the word "building" as:  



                                                                                                                

                      [A] structure designed for habitation, shelter, storage, trade,  

                                                                                                                      

                      manufacture, religion, business, education, and the like.  A  

                                                                                                        

                      structure or edifice inclosing a space within its walls, and  

                                                                                                      30  

                                                                                                

                      usually, but not necessarily, covered with a roof. 



      27   See, e.g., Barker, 739 P.2d at 1046-47; Webb, 324 P.3d at 524.
  



      28   Barker, 739 P.2d at 1046.
  



      29   Id . at 1046-47.
  



      30   Black's Law Dictionary 176 (5th ed. 1979); see also Austin v. State, 883 P.2d 992, 993
  



(Alaska App. 1994) (citing to this definition and concluding that a freezer was "a building").  



                                                                    -  9 -                                                             2571
  


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

 Here, the storage shed was a permanent structure with four walls, a roof, a floor, and a                                                                                                                                                                



 fixed entry place through which a person could enter the structure in order to store or                                                                                                                                                             



 retrieve the bicycles placed there by the business.                                                                  



                                       Coleman contends that, despite these attributes, the storage shed does not                                                                                                                                 



 qualify as a "building" because the entrance was not high enough for an average-sized                                                                                                                              



 person to enter without stooping and it was not big enough for an average-sized person                                                                                                                                                 



 to move around "comfortably."                  



                                       We agree with Coleman that, as a general matter, a structure that is too                                                                                                                                   



 small for a human being to physically enter and occupy with their whole body cannot be                                                                                                                                                              



 considered   a   "building"   that   can   be   burglarized.     We   note   that   courts   in   other  

jurisdictions have reached a similar conclusion with regard to their burglary statutes.                                                                                                                                                                31  



                                                                                                                                     

                                       For example, in Paugh v. State, the Wyoming Supreme Court held that a  



                                                                                                                                                                                                                                 

 three-foot display case in a department store was not a "separately secured or occupied  



                                                                                                                                                                                                                                       

 portion" of a building for purposes of Wyoming's burglary statute because the display  



                                                                                                                                                                     32  

                                                                                                                                                                                                                                                     

 case was "too small to accommodate a human being."                                                                                                                           The Washington Court of  



                                                                                                                                                                                                                                         

 Appeals similarly held that a police evidence locker that was 10 inches high, 10 inches  



          31        See, e.g., State v. Miller, 954 P.2d 925, 930 (Wash. App. 1998) (noting that "burglary  



 is ordinarily considered only in the context of a structure large enough to accommodate a  

                                                                                                                                      

 human being"); State v. Deitchler, 876 P.2d 970, 972, n.6 (Wash. App. 1994) (noting that a  

 structure too small for a human being to live in or do business in is not a 'building' or  

                                                                                                                                                                                                                       

 'structure' for purpose of Washington's burglary statute); Paugh v. State, 9 P.3d 973, 981  

                                                                                                                                                                                                                     

 (Wyo. 2000) (noting that the Wyoming burglary statute was designed primarily to protect  

                                                                                                                                                                                                                                 

 places where people sleep and also places that a person could occupy).  Cf. Iowa Code   

                                                                                                                                                                                                                       

 702.12 (defining "occupied structure" for purposes of Iowa's burglary statute as including  

                                                                                                                                                                                                      

 structures where goods are stored and people are not present but excluding boxes, safes, or  

 other objects which are "too small or not designed to allow a person to physically enter or  

                                                                                                                                                                                                                                      

                                    

 occupy it").  



          32        Paugh, 9 P.3d at 981.  



                                                                                                                      -  10 -                                                                                                                2571
  


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

wide, and 2 feet deep was too small to qualify as a "building" under Washington's                                          



                           33  

burglary statute.                                                                                                                              

                                Coin boxes at a car wash have likewise been found to be too small to  



                                       34                                                               35  

                                                                                                                                              

qualify as a "building,"                  as have soft drink vending machines,                              and a large tool box on  

wheels.36  



                                                                                                                                              

                       But these cases all involve containers that are significantly smaller than the  



                                                                                                                                             

storage shed at issue in Coleman's case.  Here, the trial testimony indicated that the  



                                                                                                                                             

bicycle shop's storage shed was designed to be wide enough, long enough, and tall  



enough - approximately chest- to shoulder-high - to allow an average-sized person  



                                                                                                                                           

to enter the shed and move about, albeit not necessarily for an extended period of time  



                                                                                                                                            

and not necessarily entirely comfortably.  Indeed, the testimony at trial established that  



                                                                                                                                                 

human beings did, at times, fully enter the shed to retrieve the bicycles stored inside.  



                                                                                                                                               

                       Given these circumstances, and given that the shed otherwise exhibited all  



                                                                                                                                              

of the attributes associated with the term "building" in the usual meaning of the term, we  



                                                                                                                                               

conclude that the storage shed at issue here qualified as a "building" for purposes of  



                                                                                                                                             

Alaska's second-degree burglary statute.  We therefore reject Coleman's claim that the  



                                                                                              

evidence was insufficient to support his conviction for second-degree burglary on this  



ground.  



      33   Deitchler , 876 P.2d at 971.
  



      34   Miller , 954 P.2d at 930.
  



      35   State v. Bybee, 781 P.2d 316, 318 (N.M. App. 1989). 
 



      36   People v. Knight, 204 Cal. App. 3d 1420, 1424 (Cal. App. 1988).
  



                                                                    -  11 -                                                              2571
  


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

           Why we conclude that the evidence was insufficient to support Coleman's  

                                                                                                          

          conviction for making a false report  

                                                         



                    Alaska Statute 11.56.800(a)(2) provides, in relevant part, that "[a] person  

                                                                                                                           



commits the crime of false ... report if the person knowingly ... makes a false report to  

                                                                                                                        



a peace officer that a crime has occurred or is about to occur."   In the present case,  

                                                                                                                             



Coleman was charged with making a false report based on the fact that, when Coleman  

                                                                                                                       



was stopped by the police and questioned about why he was in the area, Coleman falsely  

                                                                                                                           



claimed that he was in the area because he was chasing his van, which he falsely said had  

                                                                                                                                



been stolen.  

         



                    The evidence at trial established that the police responded to the burglary  

                                                                                                                        



alarm at the bicycle shop around 4:00 a.m.  After arriving at the scene, the police found  

                                                                                                                            



two bicycles from the bicycle shop on the ground nearby. In the vicinity, the police also  

                                                                                                                               



discovered Coleman's van, which was "high-centered" on a cement pillar in the parking  

                                                                                                                         



lot.  



                    The police also saw a man (later determined to be Coleman) trying to leave  

                                                                                                                             



the scene in a taxi cab.  One of the officers stopped the taxi and questioned Coleman,  

                                                                                                                      



who was in the back seat of the cab, sweating profusely.   When  the officer asked  

                                                                                                                            



Coleman why he was in the area, Coleman told a confusing story about his van being  

                                                                                                                            



stolen and chasing the stolen van on his bicycle. Coleman could not explain why he was  

                                                                                                                               



in a taxi cab or why he was leaving his van behind.  Coleman also could not explain  

                                                                                                                         



where the bicycle he had used to chase the van was.  When the officer asked Coleman  

                                                



why he had not called to report the stolen van to the police, Coleman said that the police  

                                                                                                                            



"handle things differently" and that he would "take care of it himself."  

                                                                                               



                    At trial, the officer testified that Coleman was clearly nervous during the  

                                                                                                                                



police questioning and that his explanation for his presence at the scene made no sense  

                                                                                                                            



and was not believable. Based on their suspicions that Coleman was responsible for the  

                                                                                                                                



                                                              -  12 -                                                       2571
  


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

burglary, the police arrested Coleman.                                                                                                                                                             Following his arrest, the keys to Coleman's                                                                                                                               



"stolen" van were found in Coleman's pocket.                                                                                                                                                 



                                                                 Coleman testified in his own defense at trial, denying any involvement in                                                                                                                                                                                                                                                                               



or knowledge of the burglary.                                                                                                                      He claimed that he had been driving his van on his way                                                                                                                                                                                                      



to buy a couch when he took a wrong turn and ended up high-centering his van in the                                                                                                                                                                                                                                                                                                                                 



parking lot of the strip mall.  When the police arrived in the area, he thought that they  



could have been called because the high-centering had made a lot of noise.                                                                                                                                                                                                                                                                                                         Coleman  



admitted that his van had not been stolen, and he asserted that he lied to the police about                                                                                                                                                                                                                                                                                                             



his   van   being   stolen   and   chasing  his  van  on   his   bicycle   because   his   license   was  



 suspended   and   he   did   not   want   to   get   in   trouble   for   driving   his   van.     The   jury  



 subsequently convicted Coleman of making a false report under AS 11.56.800(a)(2).                                                                                                                                                                                                                                                         



                                                                 On appeal, Coleman argues that his false statement about chasing his stolen                                                                                                                                                                                                                                                           



van did not qualify as a false "report" of a crime under AS 11.56.800(a)(2) because it                                                                                                                                                                                                                                                                                                                                      



was made only in response to police questioning and it was not believed or acted on by                                                                                                                                                                                                                                                                                                                                 



the police.                                         Coleman contends that "report" in this context requires "a formal disclosure                                                                                                                                                                                                                                                  



with the concomitant expectation that the police will take action on the information."                                                                                                                                                                                                                                                                    



                                                                 Coleman's claim requires us to construe the meaning of making a false                                                                                                                                                                                                                                                               



report    under AS 11.56.800(a)(2).                                                                                                                                           When we construe the meaning of a statute, we                                                                                                                                                                                        



consider the statute's language, its purpose, and its legislative history in an attempt to                                                                                                                                                                                                                                                                                                                               

give effect to the legislature's intent.                                                                                                                                          37  



                                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                 Here,  the  plain  language  of  AS  11.56.800(a)  suggests  that  there  is  a  



                                                                                                                                                                                                                                                                                                                                        

distinction between giving "false information" and making "a false report."  



                 37             Alyeska Pipeline , 77 P.3d at 1234.  



                                                                                                                                                                                                    -  13 -                                                                                                                                                                                               2571
  


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

                       Under subsection (a)(1) of AS 11.56.800, it is a crime to "give[] false                                                   



                                                                                                                                                      38  

information to a peace officer ... with the intent of implicating another in an offense."                                                                  



                                                                                                                                                

The same subsection also criminalizes "giv[ing] false information" concerning one's  



                                                                                         39  

                                                                                                                                              

                                                                                             Similarly, under subsection (a)(5),  

identity during an arrest or a criminal investigation. 



                                                                                                                                          

it is a crime to "give[] false information" to a public employee relating to a person's  



                                                                         40  

                                                         

eligibility for a permanent fund dividend. 



                                                                                                                                                      

                        In contrast, subsection (a)(2) makes it a crime to "make[] a false report to  



                                                                                                               41 

                                                                                                                   

a peace officer that a crime has occurred or is about to occur."                                                   Likewise, subsection  



                                                                                                                                                   

(a)(3) of the statute criminalizes "mak[ing] a false report" or "giv[ing] a false alarm" that  



                                                                                                                                                      

a fire or other occurrence imminently dangerous to life or property has occurred or is  



                           42  

                                                                                                                                                       

about to occur.                 And under subsection (a)(4) of the statute, it is a crime to "make[] a  



                                                                                                                                                  

false report" to the Department of Natural Resources concerning the condition of a dam  



                      43  

      

or reservoir. 



                                                                                                                                               

                        Because two  subsections of the statute make it a crime  to  give "false  



                                                                                                                            

information," while the other three subsections of the statute declare that it is crime to  



                                                                                                                                       

make a "false report" or to give a "false alarm," we are to presume that the legislature  



      38    AS 11.56.800(a)(1).  



      39    Id.  



      40    AS 11.56.800(a)(5).  



      41    AS 11.56.800(a)(2).  



      42    AS 11.56.800(a)(3).  



      43    AS 11.56.800(a)(4).  



                                                                       -  14 -                                                                  2571
  


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

                                                                                                                                                                                                                                                                              44  

meant something different by these phrases.                                                                                                                                                                                                                                              That is, we should presume that giving                                                                                                                                                                     



 "false information" does not mean exactly the same thing as making a "false report."                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                 And, in fact, when we examine the different subsections that use the same                                                                                                                                                                                                                                                                                                                                                  



 language, they appear to share a common characteristic: subsections (a)(1) and (a)(5)                                                                                                                                                                                                                                                                                                                                                                                                                  



 involve situations that are more passive - the person is giving false information to the                                                                                                                                                                                                                                                                                                                                                                                                                                



 authorities that may mislead them about a certain fact or circumstance.                                                                                                                                                                                                                                                                                                                                                                                       In contrast,   



 subsections (a)(2), (a)(3), and (a)(4) involve situations that are more active - the person                                                                                                                                                                                                                                                                                                                                                                                                        



 is making a false report about an occurrence that requires immediate action on the part                                                                                                                                                                                                                                                                                                                                                                                                                           



 of the authorities.                                                                                        In other words, making a false report contemplates that the person is                                                                                                                                                                                                                                                                                                                                                



 doing more than just passively giving a false statement to the authorities.                                                                                                                                                                                                                                                                                                                                                                                     Instead, the   



person is directly engaging with the authorities and summoning them to take some                                                                                                                                                                                                                                                                                                                                                                                                                         



 immediate action based on the person's false claim.                                                                                                                                                                                                                               



                                                                                 The plain language of the statute therefore tends to support Coleman's                                                                                                                                                                                                                                                                                                                



 contention that his false statement about his van being stolen did not constitute making                                                                                                                                                                                                                                                                                                                                                                                                     



 a false report under AS 11.56.800(a)(2).                                                                                                                                                                                                              The record makes clear that Coleman did not                                                                                                                                                                                                                      



 initiate the contact with the police; instead, he was contacted by the police, and he was                                                                                                                                                                                                                                                                                                                                                                                                                         



responding to their questions about why he was in the area.                                                                                                                                                                                                                                                                                                                                      In addition, although                                                              



 Coleman's explanation included a false statement that his van had been stolen, it was                                                                                                                                                                                                                                                                                                                                                                                                                             



 clear to the police that Coleman was not asking the police to take any action in response                                                                                                                                                                                                                                                                                                                                                                                            



to this false statement. Indeed, Coleman was adamant that he had not reported the stolen                                                                                                                                                                                                                                                                                                                                                                                                                



van to the police, he did not want the police involved, and he would "take care of it                                                                                                                                                                                                                                                                                                                                                                                                                                             



himself."  



                    44                   See  Johnson   v.   State,   380  P.3d  653,  656  (Alaska  2016)  (We  "presume  that  the  



legislature intended every word, sentence, or provision of a statute to have some purpose,                                                                                                                                                                                                                                                          

 force,  and  effect,  and  that  no   words   or  provisions  are  superfluous")  (internal  citations  

 omitted).  



                                                                                                                                                                                                                                                     -  15 -                                                                                                                                                                                                                                                 2571
  


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

                                      Coleman's argument on appeal is also supported by the legislative history                                                                                                                     



for AS 11.56.800(a)(2).                                                  There is relatively little legislative history available for the                                                                                                     



offense of making a false report.                                                             But the legislative history that does exist suggests that                                                                                      



thelegislature's                              primary concernwasthatlawenforcement resources                                                                                                     would beexpended   



on investigating reports of crimes that the person knew to be false when they made the                                                                                                                                                         



report.   The published legislative commentary to AS 11.56.800(a)(2) explains that a                                                                                                                                                                



person is subject to criminal penalties for making a false report of a crime "because of                                



the likelihood that substantial amounts of law enforcement resources will be misapplied                                                                                                                                  



                                                                              45  

in investigating the report."                                                                                                                                                                                                                     

                                                                                     Similarly, the Senate Judiciary Committee's discussion of  



                                                                                                                                                                                                                                  

the offense focused on the fact that "dispatching a police officer or several police officers  



                                                                                                                                            46  

                                                                                                                                                                                                                                    

on a long goose chase is a fairly serious offense."                                                                                                 For example, Senator Clem Tillion  



                                                                                                                                                                                                                                     

explained that the offense was intended to address the kind of situation where "a person  



                                                                                                                                                                                                                              

say[s] somebody has been killed, [and] officers proceed to the scene and find someone  



                                                     47  

                                  

laughing at them." 



                                                                                                                                                                                                                                            

                                      The Model Penal Code, from which AS 11.56.800(a)(2) is derived, also  



                                                                                                                                                                                                                                               

lends support to Coleman's claim that making a false report implies that the police are  



                                                                                                                                                                                                                                      

being  asked,  or  could  be  expected,  to  take  action  on  the  false  report.                                                                                                                                                        Like  



                                                                                                                                                                                                                                                 

AS 11.56.800(a)(2), Section 241.5 of the Model Penal Code makes it an offense to  



                                                                                                                                                                                                                                  

"report[] to law enforcement authorities an offense or other incident within their concern  



                                                                                          48  

                                                                                                                                                                                                                                                 

knowing that it did not occur."                                                                   The Commentary to this provision explains that, as  



          45       Commentary to Alaska's Revised Criminal Code, Senate Journal Supp. No. 47 at 88,   



 1978 Senate Journal 1399.  



          46       Minutes of Senate Judiciary Comm., House Bill 661, 0:30:24-0:31:16 (May 1, 1978).  

                                                                                                                                                                                                                                



          47       Id .  



          48       Model Penal Code   241.5(2), False Reports to Law Enforcement Authorities.  



                                                                                                                    -  16 -                                                                                                              2571
  


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

originally drafted,  241.5 "required proof that the actor 'cause[d] a law enforcement                                           



                                                                                      49  

officer to act in reliance on the false information.'"                                                                                    

                                                                                           But the Model Penal Code drafters  



                                                                                                                                       

later eliminated this requirement because of "the awkwardness of the causation inquiry,"  



                                                                                                                                                   

and because "false information of the sort covered [by this section] is likely to lead to  



                                                                             50  

                                                                                                                                

                                                                                   The  Model  Penal  Code  commentary  

some  police  action  and  reliance  thereon." 



                                                                                                                                            

therefore supports the conclusion that it is crime to make a false report of a crime  



                                                                                                                                                   

because of the likelihood that the police will take some action in response to the sort of  



                                                                                

information that would be included in such a "report."  



                                                                                                                                                   

                       On appeal, Coleman suggests that the offense should be strictly limited to  



                                                                                                                                                 

circumstances where the State can prove that the defendant subjectively intended the  



                                                                                                                                                

police to take action on the false report, or circumstances where the State can prove that  



                                                                                                                                     

the police actually did take action based on the false report. We disagree. The legislative  



                                                                                                                                                 

history of AS 11.56.800(a)(2) and the Model Penal Code commentary refer only to the  



                                                                                                                                             

"likelihood" that the defendant's act of falsely reporting a crime to the police will result  



                                                                                                                                              

in wasted law enforcement resources.  They do not actually suggest that the State must  



                                                                                                                                                   

prove that law enforcement resources were wasted in order to convict the defendant of  



                                                                                                                                      

making a false report.  Nor do they suggest that the State has to prove that the defendant  



                                                                                                                                           

subjectively intended the police to take action and expend resources on the false report.  



                                                                                                                                               

                       Coleman points out that there are some jurisdictions that include this type  



                                                                                                                                       

of subjective intent in their definition of this crime.  Under Minnesota law, for example,  



                                                                                                                                                    

a person is guilty of falsely reporting a crime only if the person knows that the report is  



      49    American Law Institute,                   Model Penal Code and Commentaries  (1980), Part II,   



241.5, at 162.  



      50   Id.  



                                                                      -  17 -                                                                2571
  


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

                                                                                                                51  

false and "intend[s] that the officer shall act in reliance upon it."                                                Nebraska law likewise     



                                                                                                                                               52  

requires "an intent to instigate an investigation of an alleged criminal matter."                                                                   And  



                                                                                                                                                   

Missouri law recognizes a statutory defense for persons who retracted their false report  



                                                                                                                                                         

"before  the  law enforcement  officer  or  any  other  person  took  substantial  action  in  



                                53  

                

reliance thereon." 



                                                                                                                                                    

                        However,AS11.56.800(a)(2)doesnot includethis typeofsubjectiveintent  



                                                                                                                                                     

element, and we are unwilling to read such a requirement into the statute without clear  



                                                                                                                              54  

                                                                                                                                                     

legislative  history  indicating  that  this  was  the  legislature's  intent.                                                       We  are  also  



                                                                                                                                        

unwilling to adopt Coleman's other bright-line proposals for this offense -specifically,  



                                                                                                                                                        

his suggestion that the statute should only apply when the person has formally filed the  



                                                                                                                                                  

false report, or when the person is responsible for initiating the contact with the police  



                                                                                                                                              

and summoning them to the scene.   We agree that such circumstances are relevant  



                                                                                                                                                           

considerations when determining whether a false statement about a crime constitutes a  



                                                                                                                                             

"false report" under the statute.  But we do not agree that those circumstances represent  



                                                                                                                                                 

the only ways that a person can commit the crime of making a false report under Alaska  



           

law.  



                                                                                                                                                   

                        Instead, we conclude that the crime of making a false report of a crime  



                                                                                                                                                   

requires the State to prove that the person knowingly made a false statement to the police  



                                                                                                                                         

that "a crime had occurred or was about to occur" under circumstances that objectively  



      51    Minn. Stat.  609.505.  



      52    Neb. Rev. St.  28-907(1)(a).  



      53    Mo. Rev. Stat.  575.080(2).  



      54    See State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016) (explaining that, under     



Alaska's sliding scale approach to statutoryinterpretation, "the plainer the statutorylanguage                                                

is, the more convincing the evidence of contrary legislative purpose or intent must be").  



                                                                         -  18 -                                                                    2571
  


----------------------- Page 19-----------------------

created a reasonable likelihood that the police would act on the false claim and expend                                                                                             



law enforcement resources doing so.                                          



                              Applying these requirements to Coleman's case,                                                                       we conclude that the                      



evidenceat                trial was insufficient to establish that Coleman's false statement about his van                                                                                   



being stolen qualified as a "false report" under AS 11.56.800(a)(2), even viewing the                                                                                                         



                                                                                                                                                                      55  

evidence   in   the   light   most   favorable   to   upholding   the   jury's   verdict.                                                                                                    

                                                                                                                                                                              Here,  the  



                                                                                                                                                                                

undisputed evidence at trial showed that, in response to police questioning, Coleman  



                                                                                                                                                                                              

made a confusing statement about chasing his stolen van in an attempt to explain his  



                                                                                                                                                                          

presence at the scene of the recent burglary. Coleman's statement about his purportedly  



                                                                                                                                                                                       

stolen van did not include any details or provide the type of information that the police  



                                                                                                                                                                                              

would need to investigate such a claim.  Moreover, Coleman made clear that he was not  



                                                                                                                                                                                                

seeking any police assistance with regard to the stolen van or expecting the police to  



                                                                                                                                                                                             

investigate the alleged crime.  In fact, Coleman directly told the police that he did not  



                                                                                                                                                                                         

want any police involvement in the theft of his van, and he insisted that he would "take  



                                                                                                                                                                                

care of it himself."   It was also undisputed that the police did not believe anything  



                                                                                                                                                                                              

Coleman told them, and the police did not respond to his false claim about chasing his  



                                                                                                                                                                                              

stolen  van  as  though  it  were  an  actual  report  of  a  crime  that  would  need  to  be  



investigated.  



                                                                                                                                                                                     

                              Thus, given the nature of Coleman's false statement about his van having  



                                                                                                                                                                                             

been stolen, and the circumstances under which it was made, we conclude that the  



        55     See Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008) ("When a defendant                                                                                   



challenges the sufficiency of the evidence to support a criminal conviction, an appellate court     

is obliged to view the evidence, and all reasonable inferences to be drawn from that evidence,   

in the light most favorable to upholding ... the verdict.").  



                                                                                            -  19 -                                                                                      2571
  


----------------------- Page 20-----------------------

evidence was insufficient as a matter of law to establish the crime of making a false                                                                                                    



report under AS 11.56.800(a)(2).       



                Coleman's other arguments              



                               Coleman also argues that there was insufficient evidence presented at trial                                                                                   



that he was the person who committed the burglary, theft, and criminal mischief. When                                                                                                   



we   review   a   claim   of   insufficient   evidence,   we   must  view   the   evidence,   and   all  



reasonable inferences to be drawn therefrom, in the light most favorable to the jury's                                                                                                  



                 56  

verdict.                                                                                                                                                                        

                       We then determine whether the evidence, viewed in that light, was sufficient  



                                                                                                                                                                           

for a reasonable juror to find each element of the crime proved beyond a reasonable  

doubt.57  



                                                                                                                                                                                              

                              Here, eight to nine minutes after an alarm was triggered on one of the  



                                                                                                                              

bicycle sheds, Anchorage police officers responded to the scene.  The officers noticed  



                                                                                                                                                                                                

that the door to one of the sheds had been forced open, and there were two bicycles on  



                                                                                                                                                                        

the ground nearby.   The officers noticed a van in the vicinity - later identified as  



                                                                                                                               

belonging to Coleman - "high-centered" on a cement pillar.  



                                                                                                                                                                                          

                               One of the officers then saw Coleman "running or jogging toward what  



                                                                                                                                                                                               

looked to be ... a taxi" in the parking lot of a nearby gas station.  The officer stopped the  



                                                                                                                                                                        

taxi and made contact with Coleman, who was by then in the back seat.  When asked  



                                                                                                                                                                                                

why he was in the area, Coleman stated that he had been chasing his van - which he  



                                                                                                                                                                                             

claimed to have been stolen from his home - on a bicycle. Coleman later admitted that  



        56     See Johnson, 188 P.3d at 702.  



        57     Id .  



                                                                                            - 20 -                                                                                        2571
  


----------------------- Page 21-----------------------

this was untrue.                         And Coleman could not explain why, having located his stolen van, he                                                                                                        



was now leaving the area in a taxi.                                        



                                  When the police directed a dog to track from the shed, the dog led the                                                                                                          



police   from   the   shed   to   the   location   where   the   two   bicycles   were   found,   then   to  



Coleman's van, and eventually to the gas station where Coleman had entered the taxi.                                                                                                                          



                                  Coleman argues that this circumstantial evidence tying him to the shed was                                                                                                     



"merely speculative."  He also argues that the evidence from the tracking dog was not   



credible.  



                                  But Coleman's argument rests on viewing the evidence in the light most  

                                                                                                                                                                                                              



favorable to himself.                                 As explained above, we must view the evidence in the light most                                                                                         



favorable to the jury's verdict.                                              We have reviewed the record, and we conclude that the                                                                                



evidence was sufficient for a reasonable juror to find that Coleman was the person who  

                                                                                                                                                                                                               



committed the charged crimes.  

                                                            



                                  Coleman also challenges the denial of his motion for a new trial on similar                                                                                            



grounds.                    According  to  Coleman,  "the  evidence  preponderates  heavily  against  the  

                                                                                                                                                                                                                  



verdicts."  Coleman thus argues that the trial court abused its discretion in denying his  

                                                                                                                                                                                                                   



motion for a new trial.  

                                             



                                  We review a trial court's denial of a motion for a new trial under  an abuse  

                                                                                                                                                                                                            

of discretion standard.58  

                                                                                                                                                                                                                   

                                                              When deciding a motion for a new trial, the trial judge does not  



                                                                                                                                                                                                  

"defer to the jury's assessments of witness credibility or the weight of the evidence;  



                                                                                                                                                                                                          59  

                                                                                                                                                                                                                 

rather, the judge must reach their own independent assessment of the evidence."                                                                                                                                  But  



         58      Sawyer v. State, 244 P.3d 1130, 1137 (Alaska App. 2011).  



         59      Taylor v. State, 262 P.3d 232, 233 (Alaska App. 2011).  



                                                                                                      - 21 -                                                                                                 2571
  


----------------------- Page 22-----------------------

a judge should grant a new trial only when the evidence supporting the conviction is "so                                                                                                              

slight and unconvincing as to make the verdict plainly unreasonable and unjust."                                                                                                                60  



                                                                                                                                                                                                        

                                Here, as explained previously, ample evidence was presented at trial to  



                                                                                                                                                                                                       

support the jury's verdict.                                          We thus conclude that the trial court did  not abuse  its  



                                                                                                                          

discretion in denying Coleman's motion for a new trial.  



                Conclusion  



                                We REVERSE Coleman's conviction  for  making  a  false report under  

                                                                                                                                                                                               



AS 11.56.800(a)(2) and remand this case to the superior court for re-sentencing, as  

                                                                                                                                                                                                        



appropriate.  We otherwise AFFIRM the judgment of the superior court.  

                                                                                                                                                               



        60      Id. at 234 (internal citations omitted).  



                                                                                                - 22 -                                                                                           2571  

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