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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGee v. State (07/27/2007) sp-6143
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, e-mail firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|CHRISTIAN McGEE,||) Supreme Court No. S-11611|
|Petitioner,||) Court of Appeals No. A-8452|
|) Superior Court No. 3VA-01-229 CR|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|) [No. 6143 - July 27, 2007]|
Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court, Third Judicial District, Valdez, Joel H. Bolger, Judge. Appearances: Colleen A. Libbey, Libbey Law Offices, Anchorage, for Petitioner. John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. M rquez, Attorney General, Juneau, for Respondent. Before: Bryner, Chief Justice, Matthews, Eastaugh, and Fabe, Justices. [Carpeneti, Justice, not participating.] BRYNER, Chief Justice. MATTHEWS, Justice, dissenting. I. INTRODUCTION Christian McGee was charged with criminal mischief for smashing out the windows of a truck belonging to Wesley Alexander. McGee contended at trial that he broke the windows to protect himself from being run over by Alexander. The Alaska Criminal Code recognizes the defense of necessity but generally treats it as an affirmative defense, which gives the defendant the burden of proving necessity by a preponderance of the evidence. After being instructed that this approach applied to McGee, the jury convicted him of criminal mischief. We reverse. Alaska law specifically defines the essential elements of criminal mischief to require proof of intentional damage to property of another by a person having no right to cause the damage or any reasonable ground to believe such a right existed. Given this statutory definition of the offense, we conclude that the state bore the burden of proving beyond a reasonable doubt that McGee lacked any reasonable ground to believe that his actions were justified by his need for self-protection. II. FACTS AND PROCEEDINGS A. Facts On October 27, 2001, Donna McGee met Wesley Alexander at the Elks Lodge in Valdez. They eventually went to Donnas trailer home. At around 1:30 a.m., Donnas son, Christian McGee who then lived at her trailer returned home. According to McGee, he began cooking something to eat in the kitchen area when he heard a commotion toward the back of the trailer. His mother soon came out with a pretty large gash in her head. McGee also noticed Alexander in back, asleep in the bed. McGee asked his mother what happened, and she replied that she had brought Alexander home. McGee tried to waken Alexander, who, in McGees words, got up out of bed . . . naked and started getting real mouthy, belligerent. McGee started backing up, but Alexander took upon himself to decide . . . to whoop my [McGees] ass. The two men wrestled in the hallway and into the kitchen, where Alexander placed McGee in a headlock. McGee managed to free himself and ran from the trailer; as he fled, he heard Alexander say something like Im going to run your little punk ass over, you little sorry bastard. Once outside, McGee grabbed a snow shovel and smashed out the windows of Alexanders pickup truck. McGee claimed that he did so to make sure [Alexander] couldnt see to hit me. McGee then walked toward the dark end of the trailer court, hoping to avoid Alexander and call police from a neighbors residence. The Valdez Police received several 911 calls about the disturbance. As they approached the scene they found McGee in the road walking away from his mothers home. He appeared intoxicated and highly agitated; officers reported McGee as saying, Im going to jail, I did it. Donna McGee told the police that she had cut her head when she tripped getting out of bed; she declined to say anything more. McGee acknowledged that he might have pushed his mother while trying to reach Alexander, but denied knowing how she had cut her head. Alexander gave a different account of the incident. According to Alexander, he got out of bed after hearing McGee pound on the trailer door. Alexander dressed himself as McGees mother went to open the door. He then saw McGee punch his mother in the face and begin moving toward Alexander, threatening to kill him. The two men wrestled, and Alexander gained the upper hand. He released McGee after McGee calmed down; McGee then left the trailer as Alexander called the police. While on the phone, Alexander heard breaking glass outside but he remained in the trailer until officers arrived. The police arrested McGee and charged him with two misdemeanor counts of assault (one for Alexander and one for McGees mother) and one felony count of criminal mischief for intentionally damaging Alexanders truck in excess of $500. B. Proceedings Before trial, McGee gave notice that he wanted to assert self defense as to the criminal mischief charge. The superior court allowed McGee to present evidence supporting his theory but declined to rule whether it would instruct on self defense as to the criminal mischief charge, taking that issue under advisement. Ultimately, the court declined to give a self- defense instruction as to the charge, concluding that, as defined under Alaska law, self defense applies only to the use of force against persons. But given the evidence presented at trial, the court determined that McGee could rely on the defense of necessity instead. Accordingly, the court offered to give the jury a standard necessity defense instruction. The prosecution voiced no objection to the instruction, conceding that McGees claim amounted to a sort of common sense necessity and . . . if the court doesnt instruct them somebody in there is going to . . . be back there arguing necessity without instructions. Given the courts refusal to instruct on self defense, McGee reluctantly accepted the courts offer to give the necessity instruction but expressly noted his objection that the instruction would essentially, shift part of the burden . . . more to the defense. The court instructed the jury on the defense of necessity. The instruction informed the jury that McGee bore the burden of proving his claim of necessity by a preponderance of the evidence. The jury returned a verdict acquitting McGee of assaulting Alexander but convicting him of criminal mischief for damaging Alexanders truck. The jury deadlocked on the assault involving Donna McGee, and the state later dismissed the charge. McGee appealed to the court of appeals, challenging the superior courts refusal to instruct the jury on self defense. In arguing the point, McGee relied on the language of Alaskas criminal mischief statute, which specifically requires the offense to be committed by a person who intentionally damages property having no right to do so or any reasonable ground to believe the person has such a right.1 McGee argued that this element of the offense required the state to disprove his claim of self defense because, [a] person has a right to defend himself in certain circumstances. If, in the course of protecting oneself property is damaged, a person should be able to raise self defense. McGee further contended that the standard necessity instruction given to his jury failed to cure the problem because [t]he burden of establishing necessity rests on the defendant . . . . In contrast, the State must disprove self defense. The court of appeals affirmed the superior courts ruling.2 While expressing doubt that Alaskas statutory definition of self defense would extend to the use of force against property rather than persons, the court of appeals did not decide the point.3 The court ruled instead that there was no need to instruct on self defense because McGee failed to establish a basis for believing that he faced imminent harm from Alexander a prerequisite for raising a self-defense claim.4 Relying on this factual ground, the court of appeals upheld McGees conviction without considering whether the necessity instruction permissibly shifted the burden of proof to McGee.5 McGee filed a petition for hearing with this court, seeking review of the court of appeals decision. We granted the petition, specifically asking the parties to discuss, in addition to other issues they might brief, whether the elements of Alaskas criminal mischief statute affirmatively require the state to prove the absence of self defense and/or necessity, assuming that McGee presented some evidence raising these defenses.6 Because the answer to this question proves dispositive as it relates to McGees necessity defense, we confine our opinion to that point without addressing the issue of self defense. III. DISCUSSION A. Parties Arguments McGee argues that the superior court erred in instructing the jury that he bore the burden of proving necessity by a preponderance of the evidence. McGee does not dispute that the standard necessity instruction given in his case tracks the Alaska criminal codes general provisions governing necessity. Instead, he rests his claim of error on the Alaska criminal codes specific definition of criminal mischief. The criminal mischief provision under which McGee was convicted, AS 11.46.482(a)(1), makes it unlawful to intentionally damage the property of another when a person has no right to cause the damage or any reasonable ground to believe that such a right exists.7 This no right or reasonable ground requirement is common to all levels of Alaskas criminal mischief statutes.8 McGee insists that the criminal mischief statute makes this requirement a necessary element of the crime and asserts that the state therefore had a constitutional duty to prove beyond a reasonable doubt that he lacked any reasonable ground to believe that he needed to damage the truck to protect himself from Alexander. In response, the state asserts that the codes general justification provisions unequivocally required McGee to prove his claim of necessity by a preponderance of the evidence. The state argues that because necessity excuses conduct that would otherwise amount to a crime, it is not a true defense like self defense. Thus, in the states view, the standard necessity instruction permissibly shifted the burden of proof to McGee. The state further asserts that the right mentioned in the criminal mischief statutes no right or reasonable ground requirement bears no relationship to the defense of necessity. According to the state, this requirement merely refers to property rights. The state finds this limited meaning of right to be implicit in the criminal mischief statutes provision specifying that the crime occurs only when a person damages property of another.9 Insisting that McGee had no legally cognizable interest in Alexanders truck, the state reasons that his necessity defense did not implicate any elemental right addressed by the statute. B. Analysis The parties arguments require us to address two related issues: first, we must consider the Alaska criminal codes general provision dealing with the defense of necessity to determine whether that provision always requires trial courts to treat necessity as an affirmative defense; then we must consider the criminal mischief statutes no right or reasonable ground requirement to determine whether its use of the word right is broad enough to allow a person to claim a right to damage property of another on the ground that the damage was justified under the defense of necessity. 1. Scope of the criminal codes necessity provision The superior court gave McGees jury Alaskas standard instruction on necessity. In keeping with the criminal codes general provisions on justification,10 this instruction informed the jury that McGee bore the burden of proving his claim of necessity by a preponderance of the evidence.11 The trial courts decision to give this instruction despite McGees objection that it shifted the burden of proof to him suggests that the court viewed the codes justification provisions as controlling the issue. The state adopts the same view in its arguments here. While acknowledging that the prosecution would have borne the burden of proof if the circumstances had supported a claim of self defense,12 the state asserts that necessity is entirely different from self defense because [t]he Alaska legislature has defined necessity as an affirmative defense. Because the law traditionally views necessity as a legal excuse rather than as a defense negating a necessary element of an offense, the state insists that applying the codes general definition of necessity poses no constitutional problem since [t]he prosecution was still held to its burden of proving beyond a reasonable doubt  all [of] the elements of the criminal mischief charge. The states position overlooks the specific language of the codes necessity provision, AS 11.81.320. While section .320 adopts necessity as a form of justification and classifies it as an affirmative defense, its provisions do not purport to be exclusive. By its own terms, AS 11.81.320(a) establishes a general definition of the defense meant to apply by default when more specific statutes do not provide otherwise either by plainly excluding the defense or by treating it differently in the specific situation involved: (a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when (1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and (2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear. Section .320s approach comports with the basic principle of statutory construction favoring a specific provision of a statute over a general one when the two conflict.14 It also aligns with constitutional rulings that require the state to bear the burden of proof beyond a reasonable doubt when a criminal law specifically defines the absence of a defense as an ingredient of the offense.15 As already noted, the specific criminal statute at issue here, AS 11.46.482(a)(1), defines the offense of criminal mischief to allow conviction only when property damage is intentionally caused by a person having no right to do so or any reasonable ground to believe the person has such a right.16 By describing as an integral part of the offense the defendants lack of a reasonable ground to believe that a right to damage anothers property existed, the statutes plain language makes the absence of any right or reasonable ground a necessary ingredient of criminal mischief, thus requiring the state to bear the burden of proof on the issue once it is raised. To the extent that this allocation of the burden conflicts with the codes general provision adopting necessity as an affirmative defense for the defendant to prove, the criminal mischief statutes specific requirement would prevail by the general provisions own terms, since the criminal mischief law would be a statute defining the offense in a manner that provides exemptions or defenses dealing with the justification.17 2. Meaning of right as used in the criminal mischief statute It follows that the proper allocation of proof on necessity in this case turns on the meaning of the criminal mischief statutes right or reasonable ground to believe provision. If that provision uses the word right broadly enough to include claims of right based on legal justification, then the criminal mischief statute would have required the state to disprove McGees claim of necessity: if McGee had a reasonable ground to believe that his actions were necessary, this belief would have been a justification for causing the damage. On the other hand, if the criminal mischief statutes no right or reasonable ground element gives right a narrower meaning one that excludes justifications then it would not require the state to disprove necessity, and the criminal codes general necessity provision would apply by default, making necessity an affirmative defense. The state takes the position that the element must be given a narrow reading, contending that, as used in the criminal mischief statute, right refers exclusively to property rights. This position mirrors the view the state advanced in Seibold v. State, a case in which the court of appeals found the trial courts refusal to give a necessity instruction in a criminal mischief case was reversible error.18 There the court of appeals described the states brief as asserting that the language in question merely exempted from prosecution a person who destroyed his own property or who acted in good faith on the belief he had authority to destroy the property.19 This view failed to persuade the court of appeals in Seibold,20 and it fares no better here. The narrow meaning proposed by the state finds no support in the text of Alaskas criminal mischief provision, in the traditional view of comparable property crimes, in our criminal mischief statutes legislative history, or in cases interpreting New Yorks criminal mischief law, the source of our statutes wording. a. Textual meaning of right As commonly understood and defined, the word right means any interest or expectation guaranteed by law, not just an interest or expectation relating to property.21 Since this ordinary meaning of the word is broad enough to include expectations guaranteed by laws adopting legal defenses and justifications, the meaning the state proposes here that right is limited to property rights is exceedingly narrow. The criminal mischief statute itself suggests no such limitation. To the contrary, by specifying that a person who intentionally damages property of another commits the offense of criminal mischief only when the person has no right to do so or any reasonable ground to believe that such a right exists, the language of the statute seemingly contemplates a broad, comprehensive meaning of the word right.22 The state suggests that its proposed limitation arises by implication from the criminal mischief statutes requirement that criminal mischief must involve damage to property of another. But we can glean no implied limitation of right from this seemingly independent requirement. As defined in the code, property of another means property in which [another] person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest[.]23 As a preliminary matter, we note that the codes definition of property of another does not even use the word right. Instead, it speaks in terms of interests and privileges. This definition implies no limitation on the criminal mischief statutes use of the word right. In fact, to the extent that it implies anything concerning the meaning of right, it suggests that the word is flexible enough to include any privilege or interest allowing a defendant to infringe on an owners property rights a meaning broad enough to include common law privileges, which current criminal law classifies as justifications.24 Nor does the criminal mischief statute draw any other connection between its no right or reasonable ground to believe requirement and its property of another requirement. The statutes plain language imposes these two requirements separately: they stand independently and serve different purposes; neither requirement appears to qualify or define the other. By conflating the two requirements, the state in effect proposes to make the no right or reasonable ground to believe requirement superfluous. As we just noted, the code defines property of another to mean property in which [another] person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest.25 By definition, then, a person who causes property damage but has a legitimate interest or privilege to do so would not be damaging property of another. By the same token, because the criminal mischief statute specifies that the defendant must act with intent to damage property of another,26 the property of another requirement on its own would prevent convicting a defendant who acted with a reasonable but mistaken belief that a property interest or privilege existed. Thus, if the word right refers only to a property right, as the state insists it does, the criminal mischief statutes no right or reasonable ground to believe requirement becomes mere surplusage: it adds nothing to the property of another requirement that is not already there. Adopting this interpretation would violate the maxim of statutory construction that forbids interpreting statutory language in a way that makes it superfluous: It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.27 b. Traditional view of similar property crimes The states narrow interpretation of right also conflicts with the traditional view of criminal laws dealing with property damage. While the basis for requiring the state to shoulder the burden of disproving necessity in a criminal mischief case might seem obscure at first blush, the approach makes more sense when we consider our current provisions predecessor. Before Alaska adopted its revised criminal code, the counterpart of our current criminal mischief offense was called malicious mischief and destruction of property.28 Former AS 11.20.515 defined this crime as occurring when a person wilfully or maliciously destroys, defaces, injures or exposes to injury real or personal property not his own.29 These statutory elements squarely placed the burden on the state to prove not only that the defendant intentionally damaged property not his own30 but also that the defendant did so wilfully or maliciously subjective culpable mental states that our case law commonly understood as requiring the state to prove either a conscious awareness of wrongdoing31 or the intentional commission of an unlawful act without justification or other legal excuse.32 In requiring wilful or malicious conduct, then, the malicious mischief statute effectively gave the state the burden of proving that the defendant lacked any ground to believe that a justification for committing the damage existed: by definition, no wilful or malicious destruction could be found if the defendant honestly believed that property damage was justified. Professor Perkins confirms that this view of malicious mischief was not peculiar to Alaska law; it reflected the prevailing view of the crime: [T]he element of malice, as the special mental element of malicious mischief, requires either a specific intent to cause the destruction of, or substantial damage to, the property of another, or an act done in wanton and wilful disregard of the plain and strong likelihood of such harm, without any circumstances of justification, excuse or substantial mitigation. Stated in other words: The mens-rea requirement of malicious mischief is a property-endangering state of mind, without justification, excuse or mitigation. As it existed before Alaska enacted its revised criminal code, then, the malicious mischief statute routinely required the state to prove that the defendant intentionally damaged another persons property without justification, excuse, or mitigation.34 Moreover, because the former statutes requirement of malicious or wilful destruction turned on the defendants subjective state of mind, it exempted any person who acted on the basis of a genuine but mistaken belief that a justification existed, no matter whether the belief was reasonable or patently unreasonable. When viewed against this historical backdrop, the changes incorporated in the revised codes criminal mischief provision appear to reflect a desire to narrow the malicious destruction laws broad exemption for all conduct based on mistaken beliefs by replacing the requirement of malice or wilfulness with an objective test that would exempt mistaken beliefs as to justification only when the defendant had reasonable grounds for so believing. The codes no right or reasonable ground requirement appears tailored to meet this goal: it adopts a predictable and objective substitute for malice and wilfulness that relaxes the burden borne by the state under the criminal mischief law by eliminating the former laws built-in exemption of conduct grounded on a defendants genuine but unreasonable beliefs. c. Legislative history of Alaskas current statute This view of our current laws no right or reasonable ground requirement also comports with the legislative history of Alaskas current statute. In a sectional analysis accompanying the tentative draft of the revised criminal code, the codes authors described the tentative drafts property-damage provisions as generally striving to eliminate [t]he needless proliferation of overlapping statutes which carry inconsistent penalty provisions covering damage to or tampering with property.35 Other commentary specifically addressing early versions of the criminal mischief statutes no right or reasonable ground language supports the view that this requirement worked toward the tentative drafts general goal by replacing malice and wilfulness with a uniform test designed to avoid rewarding unreasonable mistakes. The earliest tentative version of the Alaska revised codes current provision, drafted in 1976, included a shortened form of the no right or reasonable ground requirement that omitted the current phrase any reasonable ground to believe; this shortened form required the state to prove only that a defendant intentionally damaged the property of another having no right to do so.36 The commentary accompanying this shorter version explained that its drafters believed that it would narrow the existing exemption for mistaken conduct by making the new criminal mischief law cover any mistaken belief that was unreasonable, even if it was honestly held: Under this draft, one who honestly but unreasonably believes he has a right to deal with property in the way he does is covered.37 A year later, the 1977 version of the tentative draft modified the 1976 preliminary version by adding the phrase or any reasonable ground to believe he has such a right.38 This change made explicit the intent described in the 1976 commentary by specifying that mistaken beliefs would only be excused if they were reasonable.39 The commentary to the 1977 version specifically noted that its new wording extended to all levels of criminal mischief: Common to each degree of criminal mischief is the requirement that the defendant have no right nor any reasonable ground to believe he has a right to interfere with the property.40 By emphasizing that all of the codes criminal mischief provisions incorporated this new language, the 1977 commentary makes it clear that its drafters intended to narrow the malicious mischief statutes subjective exemption for mistaken beliefs by uniformly defining the elements of criminal mischief so that no form of the offense would require the state to prove the absence of unreasonable mistakes.41 But nothing in the commentary suggests any intent to narrow the then-existing law even further by adopting a restricted meaning of the word right that would completely eliminate the states traditional duty to rule out justification. To the contrary, by describing the new phrase as a requirement that the defendant act with no right or any reasonable ground for believing in the existence of a right to interfere, the commentary strongly signaled that its drafters intended right to include more than just a privilege or interest deriving from the propertys owner. d. Cases construing New Yorks criminal mischief law The 1977 tentative drafts version of the criminal mischief provision marked the first appearance in Alaskas revised code of language approximating the codes current no right or any reasonable ground requirement. The requirements phrasing was evidently drawn from almost identical language appearing in New York law.42 New York Penal Law 145 states in relevant part that [a] person is guilty of criminal mischief . . . when, having no right to do so nor any reasonable ground to believe that he has such right, the person intentionally damages the property of another.43 New York courts have consistently treated 145s no right or reasonable ground requirement as an essential element of criminal mischief and have not confined the requirement to mistakes involving property rights. In People v. Kheyfets, for example, the court recognized that New Yorks criminal mischief statute differs from those applied in other states in that it has one additional element: that the person has no right nor any reasonable ground to believe that he has the right to damage anothers property.44 The court further held that this element gives the state the burden of proving that a defendants belief was not reasonable.45 Similarly, in People v. Reed, a New York court observed that the relevant statutory provision governing criminal mischief requires a showing that, inter alia, the defendant had no right to damage the property and that he had no reasonable ground to believe that he had such right.46 New Yorks case law thus provides no support for the states narrow interpretation. 3. Proper scope of the states burden of proof Because the text, context, and history of the criminal mischief statute provide no support for the narrow meaning of right proposed by the state, we conclude that the criminal mischief statutes phrase having no right to do so or any reasonable ground to believe the person has such a rightencompasses any reasonable ground to believe that a legal justification for causing the alleged property damage existed. And since AS 11.46.482(a) unambiguously defines the essential elements of criminal mischief to include the absence of any reasonable ground to believe the person has such a right, we further conclude that the state bears the burden of proof on this element once an issue of justification is raised. Thus, if McGee properly placed the defense of necessity in issue, the state bore the burden of proving beyond a reasonable doubt that he had no reasonable ground to believe that his actions were necessary for self-protection. C. Remaining Issues Our interpretation of the criminal mischief statute leaves two questions to consider: whether McGee properly raised the defense of necessity and whether misallocating the burden of proving necessity to McGee amounted to harmless error. 1. The some evidence test A defendant who seeks to raise a defense ordinarily must present some evidence to place the defense in issue.47 Some evidence is evidence that, viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendants favor on each element of the defense.48 Although the criminal code specifically recognizes the defense of necessity, the codes provisions do not define the defenses substantive elements, simply adopting the defense to the extent permitted by common law.49 Our cases have recognized that an otherwise unlawful act may be justified by necessity when three elements are met: (1) the act was committed to prevent a significant evil; (2) no adequate alternative existed; and (3) the harm caused was not disproportionate to the harm avoided.50 The first two elements are determined by considering what the defendant reasonably believed at the time the necessity arose an inquiry that usually presents issues of fact for the jury.51 The third element requires an objective comparison of the relative seriousness of the harms caused and avoided when viewed in light of the facts perceived by the defendant.52 In this case, when the superior court proposed to rule that McGee had presented enough evidence to raise the defense, the prosecutor agreed, stating his impression that if the court failed to instruct the jury on the defense, jurors would inevitably reach the issue on their own as sort of common sense.53 The record supports the view that McGee fairly raised the defense. As we pointed out earlier, McGee testified at trial that as he fled from the trailer after escaping from Alexanders attack, Alexander threatened to run him over. McGee contended that he took this threat seriously. On cross-examination he insisted that Alexanders irrational behavior and unprovoked violence had frightened him and caused him to believe that he needed to break the trucks windows to prevent Alexander from carrying out his threat. He also suggested that, because of the fear and surprise he felt at the time, he saw no alternative course of action. When viewed in the light most favorable to McGee, his testimony qualifies as some evidence placing the first two elements of necessity in issue: the harm McGee feared was freshly threatened and serious; and considering the shock and surprise McGee described, his testimony raised a question of fact whether, at the time of the damage, he reasonably failed to recognize other available options. McGees testimony also addressed the third element of the defense, the proportionality requirement. As noted above, even though we exercise independent legal judgment in ruling on proportionality, we must view the facts from the defendants point of view under the circumstances existing when the disputed action occurred. Here, McGee claimed that he caused the property damage to avoid a potentially serious physical injury just threatened by Alexander. Viewing the situation from McGees perspective and considering his testimony suggesting that the panic of the moment blinded him to various alternative courses of action, we see no basis for declaring as a matter of law that the physical damage he caused to the truck was disproportionate to the serious physical injury he feared at the time.54 In short, we conclude that rational jurors could have differed as to whether the totality of the evidence raised a reasonable doubt based on McGees claim of necessity. 2. Harmless error The state does not claim harmless error; nor would the record support such a claim. By misallocating the burden of proving necessity to McGee, Jury Instruction Number 9 confronted McGees attorney with an awkward dilemma in arguing McGees case to the jury. On the one hand, the jury instruction describing the statutory elements of criminal mischief seemingly gave the state the burden of negating McGees claim that he had acted out of a reasonable belief that he had a right to damage the truck.55 On the other hand, Instruction Number 9 specifically told the jury that, while [t]he state has the burden of proving beyond a reasonable doubt all necessary elements of an offense as well as the absence of defenses that have been raised . . . the defendant has the burden of establishing the affirmative defense of necessity by a preponderance of the evidence. In arguing its case to the jury, the prosecution pointed out that the criminal mischief statutes no right or reasonable ground to believe requirement dealt with the defense of necessity. After reminding jurors that McGee had the burden of proving this defense by a preponderance of the evidence, the prosecution emphatically argued that McGee had failed to meet his burden: [T]he no right or no reasonable ground to believe you have such a right is talking about necessity. I[t] i[s] because necessity is that reasonable ground to believe that you have  such a right. Its not present in this case. It has not been proved by a preponderance [of the evidence.] Forced to respond as best she could, McGees counsel initially tried to describe the no right or reasonable ground requirement as an element of the crime that the state had to prove: The first element is that the defendant that the state has to prove that the defendant had no right or any reasonable grounds to believe in a right that to commit the act charged. But later, in attempting to reconcile this view with the necessity instruction, McGees counsel had to acknowledge that the necessity instruction ultimately shifted the burden from the state to McGee: [S]o to recap, the state has the burden of proving that the defendant has no right or any reasonable ground to believe in a right to commit this act of criminal mischief. But we do have the burden of showing that by a preponderance of the evidence, which is [less than] proving beyond a reasonable doubt, but proving that its more likely than not that necessity applies in this case. In other words, that the act charged, the criminal mischief, was done to present prevent a significant evil. Despite McGees trial counsels best efforts to overcome the disadvantage of the misallocated burden, then, the only argument she could muster was essentially that the state would have the burden of proof on the no right or reasonable ground requirement, but only if McGee first met his burden of proving necessity. The jury acquitted McGee of assaulting Alexander but convicted him of criminal mischief. The split verdicts suggest a likelihood that the instruction shifting the burden of proof on necessity played a substantial part in McGees conviction. Considering these circumstances, we see no basis for holding that the error in giving McGee the burden of proof on necessity was harmless. IV. CONCLUSION Alaska law defines the essential elements of criminal mischief to require proof of intentional damage to property of another caused by a person having no right to do so or any reasonable ground to believe that the person had such a right.56 Because we conclude that the right to cause damage addressed by this element of the offense includes a claim of right based on a legal justification such as the defense of necessity, we hold that McGee was improperly required to bear the burden of proof on his claim of necessity. We therefore REVERSE the conviction and REMAND for further proceedings consistent with this opinion. MATTHEWS, Justice, dissenting. I agree with todays holding that the state had the burden to prove beyond a reasonable doubt that McGee lacked any reasonable ground to believe his act was justified. I nonetheless dissent because the facts viewed most favorably to him did not support a necessity defense. The superior courts error as to the burden of proving the defense was therefore harmless. The elements of necessity are: 1) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.1 As the court notes, a defendant must present some evidence to adequately raise the defense.2 Some evidence is evidence in light of which a reasonable juror could have entertained a reasonable doubt . . . as to the element in question.3 To determine whether this test has been met in a particular case the court must view the evidence in the light most favorable to the defendant.4 I do not believe that McGee presented evidence that could cause a reasonable juror to entertain a doubt about whether McGees destruction of the truck windows was justified by necessity. McGees story is implausible. At trial he told the jury that Anderson threatened to run him over after they scuffled. So he broke the trucks windows so that Anderson would not be able to see McGee well enough to hit him with the truck. While a reasonable juror could conceivably find, as the court suggests, that the panic of the moment blinded him to various alternative courses of action,5 McGees explanation is still dubious at best. McGee had a multitude of more reasonable, not to mention more effective, options at hand, the most obvious of which would have been to stay off the road and seek immediate help.6 Furthermore, the question presented to the jury would not have been whether McGee subjectively believed that there were legal alternatives, but whether this belief was objectively reasonable. It is highly unlikely that, even viewing the evidence in the light most favorable to McGee, any juror would entertain a reasonable doubt regarding the second element of the necessity defense that there were no adequate alternatives to breaking the windows.7 Even if McGee satisfied the some evidence standard with respect to the second element of necessity, he definitely did not do so with respect to the first element. A closer look at what he actually did to the truck makes it clear that no reasonable juror could entertain a doubt about whether McGee reasonably believed his actions were done to prevent a significant evil.8 The vast majority of the damage done to Andersons truck would not have impaired Andersons ability to target and run over a pedestrian, which renders McGees explanation unbelievable. If McGee was really trying to make it difficult for Anderson to see out of the truck, one would expect a great deal of damage to the drivers side of the front windshield. Yet, photographs show that McGee concentrated his front windshield destructive efforts largely on the passengers side. Although he did smash a portion of the drivers side, he left a large area of untouched glass through which a driver could easily see. Further, McGee smashed out at least two of the trucks rear window panels and three out of four of the trucks side windows. These acts of destructive mischief might make the truck more drafty but they could not have been meant to reduce visibility and thus thwart a vengeful driver. First, the windows were on the side and the back of the truck, so it would not have significantly hampered the drivers ability to aim the truck at someone in front of him. Second, McGee completely broke out all of the glass, so Anderson would have had no trouble seeing through the windows. There are numerous cases that indicate that a successful necessity defense must establish a direct causal relationship reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.9 There is plainly no direct causal relationship between breaking the side and rear windows and stopping the harm McGee claims he was trying to avoid. The lack of a causal relationship between breaking the side and rear windows and stopping Anderson from running over McGee causes McGees necessity defense to fail the some evidence test. First, the fact that he had no reason for breaking those windows completely undermines his proffered explanation regarding the front windshield. If his goal really was to reduce visibility, why would he have risked encountering an angry Anderson by expending considerable time and energy in order to completely break out the other five windows? These actions are not in any way consistent with his story and render his story unbelievable. Second, the destruction of the side and rear windows, viewed in isolation, is sufficient to establish liability. The defense of necessity, like self-defense, is based on the belief that one should not be convicted of a crime when there is no reasonable alternative to committing it. It is a law of necessity, arising only when the necessity begins, and equally ends with the necessity.10 In self-defense no more force than appears reasonable to repel a threat may be used.11 Likewise, no greater destruction of property than appears reasonably necessary to repel a threat can be justified by the defense of necessity. When greater force, or more destruction, than reasonable is used, necessity-based defenses are not available as to the conduct that exceeds the justification.12 Whether these limits are exceeded will be a jury question, except when no reasonable juror could conclude otherwise. Here that is precisely our situation. As is discussed above, while a juror might accept McGees contention that he bashed in the trucks windshield so that Anderson could not see well enough to pursue him, no similar justification is available as to the destruction of the trucks side and rear windows. Since the malicious destruction crime is complete in terms of the required value of property destroyed when only the side and rear windows are considered,13 there was no need for an instruction on the necessity defense. Thus, the error the instruction contained was harmless. For these reasons, I do not believe that McGee presented sufficient evidence to raise the defense of necessity. Since no instruction on the defense was needed, the error in the instruction that was given is harmless. I would therefore affirm McGees conviction of criminal mischief. _______________________________ 1 AS 11.46.482(a). 2 McGee v. State, 95 P.3d 945, 947 (Alaska App. 2004). 3 Id. 4 Id. 5 Id. 6 McGee v. State, No. S-11611, Petition for Hearing Order at 1 (December 27, 2004). 7 AS 11.46.482(a) states in relevant part: A person commits the crime of criminal mischief . . . if, having no right to do so or any reasonable ground to believe the person has such a right, . . . with intent to damage property of another, the person damages property of another in an amount of $500 or more. At the time of the incident at issue here, section .482 designated the level of this offense as second-degree criminal mischief. The following year in 2002 the legislature redesignated section .482 as covering third-degree criminal mischief but did not alter the provisions substantive elements or the applicable penalties. Ch. 92, 9-11, SLA 2002. Since the amendment has no bearing on McGees case, this opinion cites subsection .482(a) as though it remained unamended. 8 See AS 11.46.475.486. Cf. Seibold v. State, 959 P.2d 780, 784 n.2 (Alaska App. 1998). 9 AS 11.46.482(a). 10 See AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense); see also AS 11.81.900(b)(2)(B) (defining affirmative defense as requiring defendants to prove the defense by a preponderance of the evidence). 11 Jury Instruction No. 9 stated in relevant part: The defendant has raised the affirmative defense of necessity with respect to Count 1, the charge of criminal mischief in the second degree. The defendant normally has no burden of proof in a criminal case. The state has the burden of proving beyond a reasonable doubt all necessary elements of an offense as well as the absence of defenses that have been raised. However, the defendant has the burden of establishing the affirmative defense of necessity by a preponderance of the evidence. 12 The criminal code classifies self defense as a defense, AS 11.81.300 .330, and requires the state to bear the burden of disproving a defense once it is placed in issue. AS 11.81.900(b)(19). 13 AS 11.81.320(a). 14 2A Norman J. Singer, Statutes and Statutory Construction 46:05, at 177 (6th ed. 2000) (Where there is inescapable conflict between general and specific terms or provisions of a statute, the specific will prevail.); see also Allen v. Alaska Oil & Gas Conservation Commn, 147 P.3d 664, 668 (Alaska 2006) (In general, if two statutes conflict . . . the specific controls over the general.). 15 State v. McCullum, 656 P.2d 1064, 1068 (Wash. 1983), abrogated on other grounds by State v. Camara, 781 P.2d 483, 487 (Wash. 1989) (citing Patterson v. New York, 432 U.S. 197, 206-07 (1977)); cf. Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986) (requiring state to bear burden of proving lack of justification when statute requires defendant to act without justification); Taylor v. State, 710 P.2d 1019, 1021 (Alaska App. 1985) (language specifying that conduct must be without lawful excuse requires state to disprove excuse). 16 AS 11.46.482(a). 17 AS 11.81.320(a)(1). 18 Seibold v. State, 959 P.2d 780, 783 (Alaska App. 1988). 19 Id. at 784. 20 The court of appeals found both parties briefing on this point not helpful and declined to decide the issue. Id. 21 Blacks Law Dictionary at 551 (Bryan A. Garner ed., pocket ed. 1996) (A right is [a]n interest or expectation guaranteed by law; for every right that a person has, somebody else has a corresponding duty.). 22 AS 11.46.482(a) (emphasis added). 23 AS 11.46.990(13). 24 See, for example, Model Penal Code 3.10 & cmt. (1985). Section 3.10 broadly defines justification in property crimes to cover any conduct damaging property under circumstances that would establish a defense of privilege in a civil action based thereon; the accompanying commentary describes the breadth of this justification as both proper and necessary. 25 AS 11.46.990(13). 26 AS 11.46.482(a)(1). 27 2A Norman J. Singer, Statutes and Statutory Construction 46:06, at 181 (6th ed. 2000); see also Mechanical Contractors of Alaska, Inc. v. State, Dept of Pub. Safety, 91 P.3d 240 (Alaska 2004) (When we engage in statutory construction we will 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. ). 28 Former AS 11.20.515. 29 Alaska Criminal Code Revision Part IV, at 19 (Tent. Draft 1977). 30 This requirement was the equivalent of the current criminal mischief provisions property of another requirement. See AS 11.46.482(a). 31 See, e.g., Hentzner v. State, 613 P.2d 821, 827 (Alaska 1980) (construing wilful to require awareness of wrongdoing as an essential element of the offense). 32 See, e.g., Tarnef v. State, 512 P.2d 923, 929 & n.9 (Alaska 1973) (approving jury instruction defining malice stating that [m]alice exists when a defendant intentionally does an unlawful act without justification or other legal excuse). 33 Rollin M. Perkins & Ronald N. Boyce, Criminal Law, ch. 4, 7, at 413 (3d ed. 1982) (emphasis in original). 34 Id. 35 Alaska Criminal Code Revision Part IV, at 20 (Tent. Draft 1977). 36 Alaska Criminal Code Revision Preliminary Report, at 90- 91 (1976), available at Seibold, 959 P.2d at 784 n.2. 37 Preliminary Report, at 92, available at Seibold, 959 P.2d at 784 n.2. 38 Alaska Criminal Code Revision Part IV, at 16-17, available at Seibold, 959 P.2d at 784 n.2. 39 Alaska Criminal Code Revision Part IV, at 16-17, available at Seibold, 959 P.2d at 784 n.2. 40 Alaska Criminal Code Revision Part IV, at 21, available at Seibold, 959 P.2d at 784 n.2. 41 Arguably, the commentarys explanation that this language applied to all classes of criminal mischief might also provide insight to the basis for the revised codes otherwise curious omission of any justification provision allowing self- defensive conduct toward property: when broadly applied, the no right or reasonable ground requirement would act as an offense- specific surrogate for a general property crimes justification provision allowing a person to act in self defense by disabling an assailants property rather than the assailant. Compare, e.g., Model Penal Code 3.10 (1985) (broadly allowing justification to be claimed in a prosecution for any property crime involving damage to property when the conduct damaging the property occurred under circumstances that would establish a defense of privilege in a civil action based thereon). 42 Seibold v. State, 959 P.2d 780, 784 n.2 (Alaska App. 1998); see also Neitzel v. State, 655 P.2d 325, 327 (Alaska App. 1982) (The Tentative Draft [of the Alaska Revised Criminal Code] prepared by the Subcommission on Criminal Law was based on a number of recent state codifications of criminal law. These codes in turn were substantially derived from the New York Revised Penal Code of 1965.). 43 E.g., N. Y. Penal Code 145 (1998). 44 People v. Kheyfets, 665 N.Y.S.2d 802, 805 (N.Y. Sup. Ct. 1997). 45 Id. 46 People v. Reed, 503 N.Y.S.2d 624, 625-26 (N.Y. App. Div. 1986). See also People v. Cantalino, 632 N.Y.S.2d 445, 448 (N.Y. Crim. Ct. 1995) (dismissing criminal mischief charge that accused the defendant of damaging a door while attempting to serve a court order, ruling that the language of the order gave the defendant a reasonable ground to believe that she had the right to do what was reasonably necessary to serve the order, which resulted in the alleged property damage). 47 See, e.g., Seibold, 959 P.2d at 782 (A defendant is entitled to a jury instruction on the necessity defense if he presents some evidence in support of each of the three elements of the defense.). Compare AS 11.81.900(b)(2)(A) (defining affirmative defense) and (b)(19)(A) (defining defense), which both include a threshold requirement that some evidence must be admitted which places in issue the defense. 48 Seibold, 959 P.2d at 782-83. 49 AS 11.81.320(a). 50 See, e.g., Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981). In cases involving continuing offenses such as driving offenses or escape, the court of appeals has recognized that the defendant must also present some evidence tending to show that the violation stopped as soon as the necessity ended. See Allen v. State, 123 P.3d 1106, 1108 (Alaska App. 2005) (citing Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988); Gerlach v. State, 699 P.2d 358, 362 (Alaska App. 1985); Wells v. State, 687 P.2d 346, 350-51 (Alaska App. 1984)). 51 See id. (Jury must determine that the defendant reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken.). 52 Id. (holding that, as to the third element, [a]n objective determination must be made as to whether the defendants value judgment was correct, given the facts as he reasonably perceived them); accord Seibold, 959 P.2d at 782; Bird v. Municipality of Anchorage, 787 P.2d 119, 121 (Alaska App. 1990). 53 The states briefing before this court is silent on the point, and its briefing before the court of appeals similarly omitted any argument that McGee failed to present sufficient evidence to raise the defense of necessity. 54 The dissent finds that McGees story is implausible. Dissent at 30. Yet our case law applying the some evidence test has emphasized that [a]ny weakness or implausibility in the evidence supporting [the defendants] story is not a relevant consideration. Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska 1978). More specifically, in the analogous context of self- defense, Alaska case law has also emphasized that, [p]articularly because reasonableness is a factual question closely allied with considerations involving the credibility of witnesses and the weight to be given to their testimony, trial courts must avoid basing decisions as to the necessity of self-defense instructions on an evaluation of the reasonableness of defendants conduct. . . . It is not the province of the judge to weigh the evidence and decide if defendants subjective belief was reasonable or unreasonable. Paul v. State, 655 P.2d 772, 778 (Alaska App. 1982) (internal citations omitted) (quoting State v. Lockett, 413 N.E.2d 378, 382 (Ill. 1980)). The dissent also likens McGees conduct to a continuing offense and suggests that he should have been required to justify his conduct as to each damaged window by presenting some evidence that the particular damage was necessary. Dissent at 33-34 n.12. But McGee was not convicted of a continuing offense; he was convicted for engaging in a brief course of conduct involving several discrete but closely connected acts of destruction. This court has declined to parse conduct of this kind as though it involved multiple crimes, holding instead that [w]e view [such] events as a series of acts, in a short and continuous sequence, which amount to a unitary criminal episode. Mill v. State, 585 P.2d 546, 552 (Alaska 1978); cf. AS 11.46.980(c) (requiring aggregation of property damage for purposes of determining classification of a property crime that involves multiple criminal acts committed under one course of conduct). Because Alaska law views McGees short and continuous sequence of destructive acts as a unitary criminal episode, McGees claim of necessity which included his testimony indicating that he acted in a panicked state of mind triggered by Alexanders sudden, unprovoked attack and express threat of imminent death suffices to meet the some evidence test. To be sure, McGees multiple acts of destruction might have weakened his claim and made it less plausible in the eyes of the jury. But as we have already noted, weakness or implausibility . . . is not a relevant consideration. Toomey, 581 P.2d at 1126 n.10. 55 Jury Instruction Number 8 stated, in relevant part: To prove that the defendant committed the crime of criminal mischief in the second degree, the state must prove each of the following elements beyond a reasonable doubt: 1. the defendant had no right or any reasonable ground to believe in a right to commit the acts charged; 2. the defendant intended to damage property of another; 3. the defendant damaged property of another; and 4. the property was damaged in an amount of $500 or more. 56 AS 11.46.482(a). 1 Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). The defense is established if the accused reasonably believed at the time of acting that the first and second elements were present, but a reasonable belief will not suffice for the third element; the court makes an objective determination . . . as to whether the defendants value judgment was correct, given the facts as he reasonably perceived them. Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998). 2 Slip Op. at 22. 3 Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982) (quoting LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980)). 4 Seibold, 959 P.2d at 783. The court points to language in Toomey v. State that states that when determining whether there is some evidence to support a defense, [a]ny weakness or implausibility in the evidence supporting [the defendants] story is not a relevant consideration. Slip Op. at 25 n.54 (citing Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska 1978)). However, this language must be read in conjunction with the some evidence test. If this court cannot consider a weakness or implausibility in a defendants story that is so glaring as to render the defendants story such that no reasonable person could entertain a reasonable doubt about it, then the Toomey exception would make the some evidence rule meaningless. In fact, the language in Toomey relies on Brooke v. United States, 385 F.2d 279, 284 (D.C. Cir. 1967), as well as a dissenting opinion by Justice Rabinowitz in Wilson v. State, 473 P.2d 633, 638 n.2 (Alaska 1970), which also relies on Brooke. The Brooke court does state that no weakness or implausibility should be considered, but it only applied this rule to cases where there is already evidentiary support for special facts sustaining a rational defensive theory. 385 F.2d at 284 (emphasis added). 5 Slip Op. at 24. 6 McGee testified that he knew that a friend of his was home only a block away. 7 Nelson, 597 P.2d at 979. There are several Alaskan cases holding that a defendant did not properly raise the defense of necessity that emphasize the availability of adequate alternatives. E.g., Gerlach v. State, 699 P.2d 358, 361 (Alaska App. 1985); Schnabel v. State, 663 P.2d 960, 966 (Alaska App. 1983); Nelson, 597 P.2d at 980. 8 Nelson, 597 P.2d at 979. 9 United States v. Butler, 485 F.3d 569, 572 (10th Cir. 2007); also, e.g., United States v. Poe, 442 F.3d 1101, 1104 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825, 829 (9th Cir. 2005); United States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005); United States v. Dixon, 413 F.3d 520, 523 (5th Cir. 2005); United States v. Nelson-Rodriguez, 319 F.3d 12, 40 (1st Cir. 2003); United States v. Salgado-Ocampo, 159 F.3d 322, 326 (7th Cir. 1998); United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995). 10 Harper v. United States, 608 A.2d 152, 154 (D.C. 1992) (quotations omitted). 11 E.g., State v. Walker, 887 P.2d 971, 978 (Alaska App. 1994) (citing P. Robinson, Criminal Law Defenses 131(c), vol. 2, p. 77 (1984)); United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006); People v. Rodriguez, 631 N.E.2d 427, 430 (Ill. App. 1994); Martin v. State, 784 N.E.2d 997, 1006 (Ind. App. 2003); Jones v. State, 745 A.2d 396, 403 (Md. 2000); Com. v. Haddock, 704 N.E.2d 537, 540 (Mass. App. 1999); State v. Bland, 337 N.W.2d 378, 381 (Minn. 1983); State v. Habermann, 93 S.W.3d 835, 837 (Mo. App. 2002); State v. Colon, 689 A.2d 1359, 1363 (N.J. Super. App. Div. 1997); Baier v. State, 891 P.2d 754, 758 (Wyo. 1995); 6 Am. Jur. 2d Assault & Battery 57 (1999). 12 Cf. Martin, 784 N.E.2d at 997 (noting that [w]here a person has used more force than necessary to repel an attack the right to self-defense is extinguished, and the ultimate result is that the victim then becomes the perpetrator) (quotations omitted); People v. Carrera, 725 N.Y.S.2d 344, 346 (N.Y. App. Div. 2001) (Even if a defendant is initially justified in using deadly physical force in self-defense, if he or she continues to use deadly physical force after the assailant no longer poses a threat, a jury may find that the defendant is no longer acting in self-defense. Where homicide is charged, the People must prove that it was the excessive force which caused death.); 2 Charles E. Torcia, Whartons Criminal Law 190, at 453 (15th ed. 1993) (If a defendant uses more force than is reasonably necessary to defend himself, he is guilty of battery.); 6A C.J.S. Assault 28 ([W]hen a person responds to an attack by using more force than is necessary to repel the aggression or apparent aggression, he or she is liable for injuries caused by the unnecessary force.). Similarly, under our necessity jurisprudence, a person claiming necessity in justification of a continuing offense must offer some evidence that the continued violation of the law as well as the initial violation was justified. Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988). It would be highly undesirable to establish a precedent suggesting that, even though a defendant must use only the force necessary when claiming self-defense and a defendant must take only the actions necessary when relying on necessity in the context of a continuing offense, a defendant need not show any such circumspection when relying on a necessity defense for a non-continuing offense. 13 A person commits the crime of criminal mischief . . . if, having no right to do so or any reasonable ground to believe the person has such a right, . . . with intent to damage property of another, the person damages property of another in an amount of $500 or more. AS 11.46.482(a). The cost of replacing just the side and rear windows was over $1,200. These acts are therefore in and of themselves sufficient to establish the elements of criminal mischief.
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