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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v Saathoff (08/17/2001) sp-5453

State v Saathoff (08/17/2001) sp-5453

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

STATE OF ALASKA,              )                  
                              )    Supreme Court No. S-9457
               Petitioner,    )    Court of Appeals No. A-7078
                              )                           
     v.                       )    Superior Court No.
                              )    3KN-S97-1961 CR   
GREG SAATHOFF,                )
                              )    O P I N I O N
               Respondent.    )                   
______________________________)    [No. 5453 - August 17, 2001]




          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Third
Judicial District, Kenai,
                     Jonathan H. Link, Judge.


          Appearances:  Marcelle K. McDannel, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Petitioner.  Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Respondent.


          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          FABE, Chief Justice.


I.   INTRODUCTION
          During the summer of 1988 Greg Saathoff purchased a rifle
that he suspected and later confirmed to be stolen property. 
Saathoff kept the stolen rifle for nine years until August 1997 --
when police discovered the stolen rifle in Saathoff's possession. 
Saathoff was charged with theft by receiving.  He appealed his
conviction, and the court of appeals reversed, holding that theft
by receiving is not a continuing offense and that therefore the
five-year statute of limitations applied and barred Saathoff's
indictment and conviction.  The State has challenged this ruling. 
For the reasons stated below, we affirm the decision of the court
of appeals.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In the summer of 1988 Greg Saathoff was working as a cab
driver in Anchorage. [Fn. 1]  Sometime during that summer, a man he
did not know approached him and offered to sell him an antique .22
caliber rifle for $100. [Fn. 2]  Saathoff initially refused, but
after the price was lowered to $35, Saathoff accepted. [Fn. 3]
          At the time that he bought the rifle, Saathoff apparently
suspected that it was stolen property. [Fn. 4]  This suspicion was
reinforced when an appraiser valued the rifle at $500 and informed
Saathoff that the rifle was a valuable antique. [Fn. 5]
          Nine years later, on August 15, 1997, Saathoff used the
rifle to shoot a neighbor's dog. [Fn. 6]  When the neighbor
responded by trying to shoot Saathoff, Saathoff summoned the
police.  The police arrived and secured all the weapons at the
scene -- including the antique rifle. [Fn. 7]  The officers at the
scene checked the serial number of the rifle and found that the
weapon had been reported stolen in a 1988 burglary. [Fn. 8]
     B.   Proceedings Below
          After Saathoff disclosed the circumstances of his 1988
purchase, he was charged and indicted on November 14, 1997 by a
Kenai grand jury for second-degree theft under AS 11.46.130(a)(2).
          In February 1998 Saathoff moved to dismiss the
indictment, arguing that the five-year statute of limitations
applied to bar the indictment. [Fn. 9]  The superior court denied
Saathoff's motion on March 26, 1998.
          In July 1998 Saathoff entered a Cooksey plea, preserving
for appeal the question of the applicability of the statute of
limitations. [Fn. 10]  Saathoff was sentenced to a term of
incarceration of fifteen months, with twelve months suspended, and
placed on probation for three years.
          Saathoff appealed his conviction, and the court of
appeals reversed, holding that the statute of limitations applied
to bar the conviction because the offense occurred in 1988 and the
limitations period ended in 1993. [Fn. 11]  The State petitioned
for review of this decision, and we granted the petition for
hearing.
III. STANDARD OF REVIEW
          The application of a statute of limitations is a question
of law that we review de novo. [Fn. 12]   This appeal requires us
to decide the meaning of AS 11.46.100 and AS 11.46.190(a).  These
are questions of statutory construction, which are also reviewed de
novo. [Fn. 13]
IV.  DISCUSSION
          Saathoff was convicted under AS 11.46.130(a)(2) of theft
in the second degree.  However, Saathoff's crime is defined by
three statutes, AS 11.46.130(a)(2), AS 11.46.100, and AS 11.46.190.
          Alaska Statute 11.46.130(a)(2) defines "theft in the
second degree" to include theft of a firearm, and declares that
"theft" is defined by AS 11.46.100. [Fn. 14]
          Alaska Statute 11.46.100 is Alaska's consolidated theft
statute, which defines the crime of "theft."  It provides for
several alternative ways that one may commit theft, including the
one applicable to this appeal, "theft by receiving." [Fn. 15] 
Alaska Statute 11.46.100(4) states that "theft by receiving" is
defined by AS 11.46.190.
          Alaska Statute 11.46.190 specifically defines "theft by
receiving":
               (a)  A person commits theft by receiving
if the person buys, receives, retains, conceals, or disposes of
stolen property with reckless disregard that the property was
stolen.

          The sole issue in this appeal is whether the statute of
limitations, AS 12.10.010, applies to bar Saathoff's conviction.
[Fn. 16] The limitations period under AS 12.10.010 is five years,
the stolen rifle was purchased by Saathoff in 1988, and prosecution
was commenced in 1997.  Therefore, it would at first blush appear
that the limitations period expired in this case before prosecution
was commenced.
          However, if Saathoff's offense was a "continuing"
offense, the statute of limitations would not have expired in this
case.  Alaska Statute 12.10.030 provides that the statute of
limitations may be tolled for certain "continuing" offenses.  If
theft by receiving is a "continuing" offense, Saathoff's offense
may have continued until 1997, allowing his prosecution and
conviction under AS 12.10.010.  The State claims that theft by
receiving is a "continuing" offense and that in Saathoff's case it
continued as long as Saathoff retained the stolen property, through
1997.  Saathoff argues that theft by receiving is not a
"continuing" offense, and that therefore the statute of limitations
should bar the conviction.
          In order to answer this question, we must address three
issues: (1) the applicability of AS 12.10.030; (2) the language,
structure, and legislative history of AS 11.46.100 and 11.46.190;
and (3) public policy considerations.  Upon analysis of these
issues, we conclude that the opinion of the court of appeals should
be affirmed:  Theft by receiving is not a continuing offense and
the statute of limitations therefore bars Saathoff's conviction.
     A.   Alaska Statute 12.10.030 Controls Our Analysis and
Requires that an Intent to Make an Offense Continuing Must "Plainly
Appear" in the Statute or Legislative History.

          Our analysis is guided by AS 12.10.030, which provides
that an offense is continuing only if the legislature plainly
intended it to be so:
          When period of limitation runs.  (a) An
offense is committed either when every element occurs, or, if a
legislative purpose to prohibit a continuing course of conduct
plainly appears, at the time when the course of conduct or the
defendant's complicity therein is terminated.

Therefore, theft by receiving is only a continuing offense if a
legislative purpose to make it a continuing offense "plainly
appears" in the language, structure, or legislative history of AS
11.46.100 and 11.46.190(a).
     B.   The Language, Structure, and Legislative History of AS
11.46.100 and 11.46.190(a) Indicate that Theft by Receiving Is Not
a Continuing Offense.

          To begin our analysis, we will focus on the language of
AS 11.46.100 and 11.46.190(a). [Fn. 17]  Under our "sliding scale"
analysis, we will normally follow plain and unambiguous statutory
language unless there is very strong contrary legislative history.
[Fn. 18]
          The court of appeals concluded, based on legislative
history, precedent, and the text of other statutes, that the
structure of AS 11.46.100 indicates that the legislature intended
to consolidate old common laws into one crime of theft. [Fn. 19] 
The court held that AS 11.46.100 does not define six separate
crimes, but instead defines broadly one crime of theft in
subsection (1) -- obtaining the property of another with intent to
deprive or appropriate. [Fn. 20]  Alaska Statute 11.46.100's five
other subsections are merely examples that are included with the
broad definition -- including (4) "theft by receiving." [Fn. 21] 
Therefore, because "theft by receiving" is not a separate offense,
and is instead simply a subset of the general crime of theft, the
court of appeals concluded that "theft by receiving" cannot be a
continuing offense, because this would make it distinct from the
other varieties of theft mentioned in AS 11.46.100. [Fn. 22]
          The court of appeals reasoned that its conclusion was
consistent with the inclusion of the word "retain" in AS 11.46.190,
the theft by receiving statute.  The court of appeals held that
"retain" under AS 11.46.190 describes "a defendant's action at a
particular point in time -- the time when the defendant acquires
the culpable mental state required for theft (awareness that the
property is probably stolen)." [Fn. 23]  This is consistent with
the conclusion that "theft by receiving" is not a continuing
offense.
          However, the State asks us to reject the analysis of the
court of appeals.  The State claims that the specific language used
in AS 11.46.100 and AS 11.46.190(a), and particularly the word
"retain" in AS 11.46.190(a), plainly indicates that theft by
receiving ("retaining") is a continuing offense. [Fn. 24] 
Specifically, the State argues that "retain" is defined by
dictionaries as an "ongoing activity." [Fn. 25]
          But as Saathoff points out, the meaning of "retain" in AS
11.46.190 is indeed ambiguous because there are two possible
meanings: "retain" could mean (1) continuing control for the
duration of the defendant's possession of the stolen item, or it
could mean (2) momentary control at the time that the defendant
receives the item or finds out that it is stolen.  If continuing
control is the correct meaning, a defendant continues to commit the
crime of theft by receiving for as long as the defendant keeps the
property.  If momentary control is correct, a defendant commits the
crime of retaining stolen property at the time that he has reason
to believe that the property is stolen and decides to "retain" the
property.
          Guidance from other courts does not resolve the question
of the plain meaning of AS 11.46.100 and AS 11.46.190(a).  Other
jurisdictions are almost evenly split on the question of the
meaning of similar statutes from other jurisdictions.  Seven
jurisdictions have concluded, based at least partly on the plain
language of state statutes, that theft by receiving is a continuing
offense, and that it continues as long as the stolen item is
retained by the defendant. [Fn. 26]  On the other hand, nine other
jurisdictions have reached the opposite conclusion. [Fn. 27]  The
plain meaning of AS 11.46.100 and AS 11.46.190(a) is ambiguous. 
There are two possible reasonable readings of "retaining" in AS
11.46.190 -- one meaning is continuing and the other is momentary. 
It appears that half of the jurisdictions that have looked at the
issue accepted one of these readings and the other half the other. 
At the very least, this seems to indicate that the plain meaning of
this language is ambiguous and susceptible to two different
reasonable interpretations.
          Because the plain meaning of AS 11.46.100 (the
consolidated theft statute) and AS 11.46.190(a) (defining "theft by
receiving") is ambiguous, we must also examine the structure and
legislative history of these statutes.  The court of appeals held
that the structure and history of these statutes indicated that
theft is a single unified crime and that theft by receiving could
not separately be construed as a continuing offense. [Fn. 28]
          Each of the steps in the analysis of the court of appeals
is in fact supported by the structure and legislative history of AS
11.46.100 and 11.46.190. [Fn. 29]  First, it is clearly the case
that AS 11.46.100 was intended as a consolidation of all of the old
common law forms of theft into one consolidated crime of theft, and
that the six subsections of AS 11.46.100 did not define six
different crimes but rather were simply examples of one unified
crime. [Fn. 30]  Also, as noted by the court of appeals, AS
11.46.190 and AS 11.46.100 appear to be based on the analogous
sections in the Model Penal Code, which define theft by receiving
and create one consolidated crime of theft. [Fn. 31]  Finally, a
passage cited in the Draft Revision indicates that one consequence
of the consolidation of AS 11.46.100 is that an offender cannot be
convicted of two offenses based on the same transaction; also, the
passage implies that there is little difference between theft by
receiving and theft by taking, since the relevant act for both is
the act of obtaining the property, which is complete when the
property is obtained. [Fn. 32]
          The State argues that the legislative history and
structure of AS 11.46.100 and AS 11.46.190 indicate that theft by
receiving should be construed as a continuing offense.  The State
claims that the drafters of AS 11.46.100 intended to make theft by
receiving a continuing crime because the distinction between theft
by receiving and other types of theft is a distinction that has a
logical foundation in the crime.  The State cites the Commentary on
the Alaska Revised Criminal Code, which states that "[t]o commit
theft under paragraphs (1), (2), (3) and (6) the defendant must
obtain property of another." [Fn. 33]  The State contends that the
drafters therefore intended subsections (1)-(3) and (6) of AS
11.46.100 to be non-continuing crimes, since in these types of
theft the controlling word is "obtain," which is clearly a non-
continuing act that is completed at the time of the theft.  On the
other hand, in the definition of theft by receiving -- which is
subsection (4) of AS 11.46.100 and is not on this list -- the
controlling word is "retain," which is clearly a continuing act
that is not complete at the time of receipt.
          However, as Saathoff points out, the sentence in the
Commentary quoted by the State is taken out of context. [Fn. 34] 
The Commentary discussion pertains only to the drafters' broad
definition of "obtain."  It cannot reasonably be interpreted as
distinguishing between theft based on "obtaining" and theft based
on "retaining."  Indeed, there is nothing in the legislative
history that indicates that theft by receiving was intended to be
treated differently from the other forms of theft under AS
11.46.100. [Fn. 35]
     C.   Public Policy Considerations Do Not Justify Construing
Theft by Receiving as a Continuing Offense.

          The State advances three policy arguments to support its
claim that theft by receiving is a continuing offense.  These
arguments are: (a) the harm is ongoing; (b) a person who commits
the offense of theft by receiving has an ongoing moral duty to
return the stolen item; and (c) if theft by receiving is not
construed as a continuing offense, this provides criminals with an
incentive to engage in "fencing" operations.
          However, because we have already determined that the
language, structure, and legislative history of AS 11.46.100 and AS
11.46.190 indicate that theft by receiving is not a continuing
offense, we decline to address these policy arguments.  Such public
policy arguments are better addressed to the legislature. [Fn. 36]
V.   CONCLUSION
          Because the intent to make theft by receiving a
continuing crime does not "plainly appear" in the language,
structure, or legislative history of AS 11.46.100 and AS
11.46.190(a), we AFFIRM the decision of the court of appeals below.


                            FOOTNOTES


Footnote 1:

     See Saathoff v. State, 991 P.2d 1280, 1281 (Alaska App. 1999).


Footnote 2:

     See id.


Footnote 3:

     See id.


Footnote 4:

     See id.


Footnote 5:

     See id.


Footnote 6:

     See id.


Footnote 7:

     See id.


Footnote 8:

     See id.


Footnote 9:

     AS 12.10.010 imposes a five-year limitations period for many
crimes, including second-degree theft.


Footnote 10:

     Ordinarily, a defendant who pleads guilty or no contest waives
all non-jurisdictional errors that may have been committed in the
trial court.  However, under an exception established by Cooksey v.
State, 524 P.2d 1251, 1255-67 (Alaska 1974), a defendant may enter
a "Cooksey plea" and plead no contest, explicitly preserving some
specific issue for appeal.  See Bobby v. State, 950 P.2d 135, 139
(Alaska App. 1997).


Footnote 11:

     Saathoff, 991 P.2d at 1286.


Footnote 12:

     See Law Offices of Steven D. Smith, P.C. v. Borg-Warner Sec.
Corp., 993 P.2d 436, 443 (Alaska 1999).


Footnote 13:

     See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 512 (Alaska
1998).


Footnote 14:

     AS 11.46.130 provides in part:

               (a)  A person commits the crime of theft
in the second degree if the person commits theft as defined in AS
11.46.100 and

               . . . .

               (2)  the property is a firearm or
explosive.


Footnote 15:

     AS 11.46.100 provides for six ways that one can commit the
offense of "theft," incorporating various common law offenses
including larceny, false pretenses, embezzlement and receipt of
stolen property.  The full text provides:

          A person commits theft if

               (1)  with intent to deprive another of
property or to appropriate property of another to oneself or a
third person, the person obtains the property of another;

               (2)  the person commits theft of lost or
mislaid property under AS 11.46.160;

               (3)  the person commits theft by
deception under AS 11.46.180;

               (4)  the person commits theft by
receiving under AS 11.46.190;

               (5)  the person commits theft of services
under AS 11.46.200;

               (6)  the person commits theft by failure
to make required disposition of funds received or held under AS
11.46.210.


Footnote 16:

     AS 12.10.010 provides in part:

          Except as otherwise provided by law, a person
may not be prosecuted, tried, or punished for an offense other than
murder unless the indictment is found or the information or
complaint is instituted no later than

          . . . .

               (2)  five years after the commission of
any other offense. 


Footnote 17:

     See Libby v. City of Dillingham, 612 P.2d 33, 39 (Alaska 1980)
(beginning statutory analysis with the language of the statute).


Footnote 18:

     See In re Johnstone, 2 P.3d 1226, 1231 (Alaska 2000).


Footnote 19:

     See Saathoff v. State, 991 P.2d 1280, 1282-84 (Alaska App.
1999).


Footnote 20:

     See id. at 1283.


Footnote 21:

     Id.  The court of appeals noted that the legislature's purpose
to consolidate all forms of theft into one unified crime is evident
in AS 11.46.110, the statute concerning the government's pleading
and proof in theft cases.  Also, the court cited prior decisions
recognizing this legislative purpose: Cheely v. State, 850 P.2d
653, 661 (Alaska App. 1993); Williams v. State, 648 P.2d 603, 606
(Alaska App. 1982).  


Footnote 22:

     See Saathoff, 991 P.2d at 1284.


Footnote 23:

     Id. at 1285.  The court's interpretation is supported by the
Model Penal Code, sec. 223.6 commentary at 235 (1980): "By defining
'receiving' to include the retention of possession, the Model Code
. . . makes it possible to convict a person who receives [property]
without knowledge that the goods were stolen but who, upon learning
of their status, nevertheless resolves to keep or sell them."  In
the commentary, "retention" refers to the defendant's action in
keeping the property after learning that the property is probably
stolen.


Footnote 24:

     The State argues that Saathoff committed theft by receiving by
"retaining" the stolen rifle.  AS 11.46.190(a), defining theft by
receiving, states that "a person commits theft by receiving if the
person buys, receives, retains, conceals, or disposes of stolen
property with reckless disregard that the property was stolen."
(Emphasis added.)


Footnote 25:

     Webster's Dictionary defines "retain" as "to continue to hold
in possession or use."  Webster's Dictionary 2126 (2d ed. 1966). 
Black's Law Dictionary defines "retain" as "to continue to hold,
have, use . . . and to keep."  Black's Law Dictionary 1183 (5th ed.
1979).


Footnote 26:

     See State v. Reeves, 574 S.W.2d 647, 649 (Ark. 1978) (holding
that, under state statute, plain meaning of "to retain" indicates
that retention of stolen property is a continuing offense); State
v. Temple, 650 P.2d 1358, 1362 (Haw. 1982) (same); State v.
Harelson, 938 P.2d 763, 766 (Or. App. 1997) (same); Commonwealth v.
Farrar, 413 A.2d 1094, 1098 (Pa. Super. 1979) (same); Davis v.
State, 586 So. 2d 817, 820 (Miss. 1991) (noting that the common and
ordinary meaning of language of state statute makes "receipt" of
stolen property a continuing offense); State v. Homer, 605 N.E.2d
426, 426 (Ohio App. 1992) (no analysis); State v. Lodermeier, 481
N.W.2d 614, 620-21 (S.D. 1992) (holding that under state criminal
possession of stolen property statute which "incorporated" the
crime of "receiving and retaining," the use of the word "retain"
indicated a clear intent to make that aspect of the crime
continuing).


Footnote 27:

     See United States v. Mendoza, 122 F. Supp. 367 (N.D. Cal.
1954) (holding that under the federal statute, theft by receiving
is not a continuing offense because the federal statute does not
clearly make "retaining property a continuing offense," and because
statutes of limitation should be reasonably construed in favor of
the criminal defendant); Wilkerson v. State, 516 So. 2d 916, 927
(Ala. Crim. App. 1987) (no analysis); Williams v. Superior Court of
Los Angeles County, 146 Cal. Rptr. 311, 318-19 (Cal. App. 1978)
(holding that theft by receiving is not a continuing offense, while
theft by concealment is a continuing offense, based on the
difference in meaning between the two terms); State v. Webb, 311
So. 2d 190, 191-92 (Fla. App. 1975) (holding that the clear
language of state theft by receiving statute makes it a non-
continuing offense, because statute is silent as to whether the
offense is continuing); State v. Barnes, 859 P.2d 1387, 1388-89
(Idaho 1993) (holding that the clear language of state theft by
receiving statute makes it a non-continuing offense); State v.
Nuss, 454 N.W.2d 482, 483-87 (Neb. 1990) (same); State v. Hippler,
545 N.W.2d 568, 572 (Iowa 1996) (considering "theft by exercising
control" statute, and holding that statute does not define
continuing offense, because statute does not expressly so state in
its plain language, and because there is no other evidence of
legislative intent that so indicates); Commonwealth v. Ciesla, 403
N.E.2d 381, 383 (Mass. 1980) (holding that "retaining or aiding in
the concealment of stolen property" is not a continuing offense
absent evidence of active continuing concealment); State v.
Longway, 400 A.2d 1002, 1003 (Vt. 1979) (no analysis).


Footnote 28:

     See Saathoff, 991 P.2d at 1282-86.


Footnote 29:

     AS 11.46.100 and AS 11.46.190 were part of the Alaska Revised
Criminal Code, passed by the legislature in 1978.  The legislative
history of these statutes consists of two documents: (i) Commentary
on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47,
1978, Senate Journal [hereinafter "Commentary"], and (ii) the
Alaska Criminal Code Revision (Tent. Draft 1977) [hereinafter
"Draft Revision"] which was separately published by the Criminal
Code Revision Subcommission.


Footnote 30:

     See Draft Revision, supra note 29, Part III, at 18; Commentary
at 30 ("Subsections (2)-(6) refer to sections describing how theft
of lost property, theft by deception, theft by receiving, theft of
services, and theft by failure to make required disposition of
funds received or held may be committed.  It is important to note
that the conduct described in these sections do[es] not define
separate crimes.").


Footnote 31:

     See Saathoff, 991 P.2d at 1284.  The language of AS 11.46.190
is virtually identical to the language of other state theft by
receiving statutes that are clearly based on the Model Penal Code. 
See State v. Cabrera, 978 P.2d 797, 805 (Haw. 1999) (noting that
Haw. Rev. Stat. sec. 708-830(7) follows the Model Penal Code);
State
v. Nuss, 454 N.W.2d 482, 483 (Neb. 1990) (noting that Neb. Rev.
Stat. sec. 28-517 follows the Model Penal Code); State v.
Schindler,
531 P.2d 915, 919 (Or. 1975) (noting that Or. Rev. Stat. sec.
164.095(1) follows the Model Penal Code); 18 Pa. Cons. Stat. sec.
3925(a) cmt. (noting that 18 Pa. Cons. Stat. sec. 3925(a) follows
the
Model Penal Code); S.D. Codified Laws sec. 22-30A-7 cmt. (noting
that
S.D. Codified Laws sec. 22-30A-7 follows the Model Penal Code).


Footnote 32:

     [C]onsolidation [will] make it impossible to convict of
two offenses based on the same transaction.  A person found in
possession of recently stolen property may be either the thief or
the receiver; but if the prosecution can prove the requisite
thieving state of mind, it makes little difference whether the jury
infers that the defendant took directly from the owner or acquired
from the thief. 

Draft Revision, supra note 29, Part III, at 36, quoting Or. Rev.
Stat. sec. 164.095.  Commentary, supra note 29, at 173.


Footnote 33:

     Commentary, supra note 29, at 31.


Footnote 34:

     The Commentary notes that "obtaining" is the relevant act in
subsections (1)-(3) and (6) of AS 11.46.100 to show how broad the
concept of "obtaining" is under AS 11.46.100.  As the Commentary
notes, "obtaining" includes constructive acquisition and is not
limited to asportation.  Commentary, supra note 29, at 31.  The
full text of the paragraph is:

          To commit theft under paragraphs (1), (2), (3)
and (6) the defendant must "obtain" property of another.  The
definition of "obtain" in sec. 900(5) extends the concept of taking
to
include constructive acquisition of property.  Because asportation
or "carrying away" of property is not an element of theft under the
consolidated theft statute, theft of real property is possible
under the Code, even though it was not included within the common
law crime of larceny.


Footnote 35:

     The only passages that discuss the different forms of theft
support the court of appeals's analysis.  Commentary, supra note
29, at 30 ("Subsections (2)-(6) refer to sections describing how
theft of lost property, theft by deception, theft by receiving,
theft of services, and theft by failure to make required
disposition of funds received or held may be committed.  It is
important to note that the conduct described in these sections
do[es] not define separate crimes."); id. at 32 ("[O]ne of the
chief aims of [AS 11.46.110 is the] elimination of the confusing
distinctions among the most typical theft offenses."); id. at 37-38
(discussing theft by receiving, treating it as a non-continuing
crime:  "Buying a new color television from a person in the street
for $50 would be an example of conduct done with 'reckless
disregard' as to whether the property was stolen."); Draft
Revision, supra note 29, Part III, at 18 ("The traditionally
distinct crimes of larceny, larceny by trick, embezzlement, theft
of mislaid property, obtaining property by false pretenses and
receiving stolen property are now combined into the single crime of
'theft.'").


Footnote 36:

     See State, Dep't of Natural Resources v. City of Haines, 627
P.2d 1047, 1052 (Alaska 1981) (refusing to consider public policy
arguments concerning the construction of a statute because the
proper construction was clear from the statute's language and
legislative history).