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Y.J. v. State (3/3/2006) ap-2034

Y.J. v. State (3/3/2006) ap-2034

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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Y. J., )
) Court of Appeals No. A-9021
Appellant, ) Trial Court No. 3AN-04-173 DL
v. )
) O P I N I O N
Appellee. ) No. 2034 March 3, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage, Dan  A.  Hensley,

          Appearances:  Jill C. Wittenbrader, Assistant
          Public  Advocate, and Joshua P. Fink,  Public
          Advocate,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Following  a  bench  trial in front of  Superior  Court
Judge  Dan  A. Hensley, Y. J. was found to be a delinquent  minor
based on allegations that he, as a seventeen-year-old, carried  a
concealed   firearm   (fifth-degree  weapons   misconduct   under
AS  11.61.220(a)(6)), and that he also hid evidence of this crime
(tampering with evidence under AS 11.56.610(a)).
          These  charges arose from an incident that occurred  on
the  evening  of  July 17, 2004.  Anchorage Police  Officer  Jack
Carson  and several other officers were investigating a  shooting
that  had  occurred earlier that day.  The officers approached  a
group  of  young  men and juveniles who were  standing  around  a
parked  car.  One of the juveniles, later identified  as  Y.  J.,
began to back away from the officers and then turned and ran.
          Y.  J.  ran hunched over, and he appeared to be holding
something  inside his pants.  Although Officer Carson  could  not
see this object, he suspected that it was a gun because Y. J. was
holding the object at his hip.
          Officer Carson lost sight of Y. J. several times as the
boy  rounded the buildings along Russian Jack Drive.  During  one
of  the  times when Y. J. was out of the officers sight, the  boy
was  running along a wooden fence.  Unbeknownst to Y. J., another
officer  was running parallel to Y. J. on the other side  of  the
fence.   This  officer saw a handgun arc over the  fence,  rattle
through  the branches of a tree, and then fall to the  ground  at
his feet.
          In  the  meantime,  Officer Carson continued  to  chase
Y.  J..   The officer arrived at the parking area in front  of  a
condominium building located at 1701 Russian Jack Drive.   Y.  J.
was  nowhere  to  be seen.  The officer asked a  bystander  where
Y.  J.  had  gone, and the bystander pointed to Unit D-1  of  the
condominium building.  Officer Carson and several other  officers
posted themselves around the entrance to that unit.
          Y.  J. was indeed inside Unit D-1.  Damon Shine and his
14-year-old  daughter  lived in this unit.   The  daughter  heard
someone come into the residence.  When the girl went upstairs  to
find  out  who  it was, she discovered Y. J. (with whom  she  was
acquainted)  in the upstairs bathroom.  The girl told  Y.  J.  to
leave,  but  he refused.  The girl then went outside,  where  she
encountered the police officers.
          Y.  J. came out of the residence several minutes later,
and the officers took him into custody.
          Officer   Randy  Rhodes  then  entered  the  residence,
looking for weapons.  He discovered a holster under a bed on  the
second floor.  When Damon Shine was asked about this holster,  he
confirmed that it did not belong to him or to anyone else in  his
          The  police later learned that both the holster and the
handgun (the one that was tossed over the fence) had been  stolen
approximately  two years earlier.  The holster  was  designed  to
hold that particular handgun.
          At Y. J.s trial, he contended that the State had failed
to  prove, beyond a reasonable doubt, that he was the person  who
tossed the gun over the fence or who placed the holster under the
bed.    Superior  Court  Judge  Dan  A.  Hensley  rejected  these
contentions.   He  found  that Y. J. had in  fact  possessed  the
concealed handgun and holster, that Y. J. had tossed the gun over
the  fence, and that Y. J. had then hidden the holster under  the
bed in the condominium unit.
          After  his  trial, Y. J. filed a motion for  a  partial
judgement  of acquittal.  In this motion, Y. J. argued that  even
if  he  had  tossed the gun over the fence, and even  if  he  had
hidden  the  holster under the bed, these acts did not constitute
the  crime  of  evidence tampering under AS 11.56.610(a).   Judge
Hensley  denied this motion, and Y. J. now appeals Judge Hensleys
decision.  (Y. J. does not appeal Judge Hensleys finding that  he
committed   fifth-degree  weapons  misconduct  by  possessing   a
concealed firearm.)
          Y.  J. argues that, under this Courts decision in Vigue
v.  State, 987 P.2d 204 (Alaska App. 1999), he is entitled  to  a
judgement of acquittal on the evidence tampering charge  even  if
the  State  proved that he tossed the handgun over the fence  and
then  hid  the holster under the bed.  For the reasons  explained
here,  we  need  not resolve whether Y. J.s act  of  tossing  the
handgun over the fence constituted evidence tampering, because we
hold  that  Y.  J.s act of hiding the holster did constitute  the
offense of evidence tampering.

     Did  Y.  J.s act of tossing the handgun over the  fence
     constitute the offense of evidence tampering as defined
     in AS 11.56.610(a)?
               In  Vigue,  this Court held that a defendants
     act  of  tossing drugs to the ground when  he  saw  the
     police  approaching  did  not  constitute  an  act   of
     suppression,  concealment, or removal of  evidence  for
     purposes  of  Alaskas  evidence tampering  statute,  AS
     11.56.610(a).   987  P.2d  at  210.   And,  after   the
     briefing  was  completed in Y.  J.s  case,  this  Court
     decided  Anderson v. State, 123 P.3d 1110 (Alaska  App.
     2005),  another  case involving the evidence  tampering
     statute.  In Anderson, we held that a defendants act of
     tossing  a handgun and ammunition from a car  while  he
     was  being  chased  by the police  did  not  constitute
     evidence tampering.  Id. at 1118-19.
               In  Y. J.s case, his act of tossing away  the
     handgun  while  he was being chased by  Officer  Carson
     appears to be analogous to the conduct of the defendant
     in  Anderson  when  he  tossed the  gun  from  the  car
     conduct that we ruled did not constitute the actus reus
     of evidence tampering.  The State argues, however, that
     Y.  J.s case is different because (1) Y. J. was out  of
     Officer Carsons sight when he tossed the handgun  away,
     and  (2)  Y. J. did not simply throw the gun down,  but
     rather tossed the gun over a fence where he thought  it
     would remain hidden.  The State argues that it was pure
     fortuity that there was an officer on the other side of
     the fence who observed the gun fall.  Otherwise, Y.  J.
     might have accomplished his intention of concealing his
     possession  of the handgun  indeed, perhaps  concealing
     the handguns very existence  from the police.
          The   State   offers  plausible  distinctions
between the facts of Y. J.s case and the facts of cases
like  Vigue and Anderson.  On the other hand, one could
plausibly argue that, from the standpoint of protecting
police officers, we should not interpret the law so  as
to  penalize  armed  suspects for  tossing  away  their
weapons during police chases.
          However, we conclude that we need not resolve
these  issues, because Judge Hensley found Y. J. guilty
of  evidence tampering on a separate independent basis:
Y.  J.s  act  of hiding the holster in the  condominium
unit.   As  we  explain here, this latter  conduct  did
constitute the offense of evidence tampering.

Y.  J.s  act  of concealing the holster under  the  bed
constituted  the  offense  of  evidence  tampering   as
defined in AS 11.56.610(a)

          Y.  J. argues that, as a legal matter, he did
not  conceal  the  holster because the  police  quickly
located  this holster when, following Y. J.s surrender,
they  entered the residence and searched the  residence
for  weapons.   Y.  J. argues that a  holster  [placed]
under  a bed is as [likely] to [be discovered]  as  ...
something  [dropped] in plain view of a policeman.   In
both  instances, there is almost no effort put into  an
attempt to hide ... the object.  We disagree.
          To  the extent that Y. J. may be arguing that
he did not intend to hide the holster when he placed it
under  the bed, he is disputing Judge Hensleys view  of
the  facts  in particular, Judge Hensleys verdict  that
Y.  J.  put  the holster under the bed with  intent  to
impair  its  verity or availability in ...  a  criminal
investigation  (the mens rea required by  the  evidence
tampering statute).
          The   substantial   evidence   test   governs
appellate  review  of  verdicts in  judge-tried  cases.
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).   Thus,
Y.  J. must show that there was no substantial evidence
to support Judge Hensleys verdict.
          Under the substantial evidence test, we  must
uphold  Judge  Hensleys verdict if the record  contains
evidence  that  a  reasonable  mind  might  accept   as
adequate  to support [the challenged] conclusion.1   We
do  not  re-weigh the evidence or choose between compet
ing  inferences;  we  only determine  whether  evidence
exists to support the judges conclusion.2
          Here,  there  is ample evidence  that  Y.  J.
placed  the holster under the bed in the hope that  the
police  would not find it.  As explained above,  Y.  J.
ran  into another familys residence to escape from  the
police.  By this maneuver, he did temporarily frustrate
police  efforts to locate him.  While in the residence,
Y.  J.  placed his holster under a bed.  A few  minutes
later  (after  Y. J. was discovered and  was  asked  to
leave  by a resident of the house), Y. J. emerged  from
the  residence  and  surrendered to  the  police.   But
because  he  left the holster behind in the  residence,
Y. J. had no further physical evidence on his person to
connect him to the possession of the concealed handgun.
          From   these   facts,  Judge  Hensley   could
          justifiably conclude that when Y. J. placed the holster
under  a bed in a house that was not his, Y. J. did  so
for  the purpose of hiding the holster from the police,
thus impair[ing] its ... availability in ... a criminal
          This leaves the legal issue of whether Y. J.s
conduct   constituted  the  actus  reus   of   evidence
          Y. J. argues that he never actually concealed
the  holster because the police located it  so  quickly
when they swept the condominium unit for weapons.   But
Y.  J.s  argument overlooks the fact that he  ran  into
another  familys residence and, while  he  was  out  of
sight  of  the police, he put the holster  in  a  place
where  the police would not find it unless they entered
the  residence  and searched.  Even  after  the  police
located  the holster, they had to question Damon  Shine
in  order to ascertain that the holster did not  belong
to a member of his family.
          Given these circumstances, the fact that  the
police  quickly found the holster in its  hiding  place
does   not  defeat  a  finding  that  Y.  J.s   conduct
constituted  a concealment of the holster for  purposes
of the evidence tampering statute.
          Y.  J.  argues that we should follow the  New
Jersey   courts  by  limiting  our  evidence  tampering
statute  so that it does not apply to efforts  to  hide
evidence of an on-going possessory offense.3  But  this
suggested interpretation of the statute would not  help
Y. J..  His act of concealing the holster under the bed
in  the  Shine residence occurred after his  possessory
offense (carrying a concealed firearm) had ended.   Not
only had Y. J. tossed the handgun away, but he had also
reached  a  place of temporary refuge (the  condominium
unit); thus, there was a break in the action.  With the
police still searching for him, Y. J. then attempted to
rid himself of an article (the holster) that tended  to
circumstantially  prove that he had  earlier  possessed
the concealed firearm  so that when he emerged from the
residence  and surrendered to the police, he would  not
be carrying the tell-tale holster.
          Our decision in Anderson suggests that Y.  J.
might not have been guilty of evidence tampering if  he
had tossed away the holster and the handgun at the same
time.   Thus, it may appear incongruous to hold  Y.  J.
liable for evidence tampering because he waited until a
few  minutes later to conceal the holster.  We base our
decision  on  the fact that there was a  break  in  the
action,  that  Y. J. had reached a place  of  temporary
refuge, and that Y. J. hid the holster in a such manner
that it could not definitely be linked to him until the
police interviewed the home owner and verified that the
holster did not belong to anyone living there.
          There  must  be a point at which  an  act  of
concealing  evidence  is  no longer  deemed  merely  an
          aspect of the underlying possessory offense, but rather
takes on independent legal significance.  Without  some
sort  of  dividing line, either all acts of  concealing
evidence  of  a  possessory offense would  be  evidence
tampering,  or  none  would.  We are  not  prepared  to
definitively draw this line for all future  cases,  but
we  do hold that, under the facts of this case, Y.  J.s
act  of  hiding  the  holster in the  condominium  unit
crossed the line and became an independent offense.

Y.  J.s  argument  that the evidence tampering  statute
imposes a disproportionate penalty for acts of evidence
concealment relating to a misdemeanor

          Y.   J.   raises  one  last  argument:    the
assertion  that it is unfair to impose felony penalties
on  a  person  for concealing evidence of a misdemeanor
(in  this case, the class B misdemeanor of fifth-degree
weapons misconduct).
          Strictly speaking, Y. J. does not face felony
penalties for evidence tampering, since he was a  minor
prosecuted  under Alaskas delinquency  laws.   However,
the  fact  that Y. J. has been adjudicated a delinquent
based   on   felony  conduct  does  have  more   severe
repercussions  than  if  he  had  been  adjudicated   a
delinquent  based  on misdemeanor  conduct.   See,  for
example,  AS 11.61.200(a)(1), which declares  that  the
prohibition  on  felons carrying  concealable  firearms
applies  to  persons who have been declared  delinquent
based on felony conduct.  See also AS 12.55.155(c)(19),
which declares that a felony sentence can be aggravated
if   the   defendant  was  previously   adjudicated   a
delinquent based on felony conduct.  We therefore  turn
to the merits of Y. J.s argument.
          In  Anderson and in Vigue, we pointed out the
seeming illogic of convicting someone for a felony when
they  try  to discard or conceal evidence  of  a  minor
offense.4   Based on the anomalous results  that  would
occur  if we interpreted the evidence tampering statute
broadly  in  situations where people discarded  or  hid
evidence  of  an ongoing minor possessory  offense,  we
concluded that the legislature had not intended for the
evidence   tampering  statute   to   apply   to   those
          But  our decisions in Anderson and Vigue  are
ultimately  based  on statutory construction.   When  a
question of law is governed by statute, it is  not  our
role  to  adopt  the social policy that we  deem  best.
Rather,  our  role  is  to interpret  the  statute   to
ascertain the legislatures intent, and then to construe
the statute so as to implement that intent (assuming no
violation of the constitution).5
          Here,  we  have already resolved the relevant
issue  of  statutory interpretation:  we have concluded
that  Y. J.s act of concealing the holster falls within
          the scope of the evidence tampering statute.
          We  acknowledge  that, in some  instances,  a
defendants  punishment for evidence  tampering  can  be
much more severe than the defendants punishment for the
underlying  crime to which the evidence pertains.   The
legislature  has  declared that every act  of  evidence
tampering is a felony, even when the underlying offense
to which that evidence relates is only a misdemeanor or
even  a  violation (a non-criminal offense that carries
only a fine as punishment).6
          Indeed,   the   evidence  tampering   statute
applies   to  the  concealment,  suppression,  removal,
destruction,  mutilation,  or  alteration  of  physical
evidence  pertinent  to  any official  proceeding.   An
official  proceeding  is defined  as  [any]  proceeding
heard  before  a legislative, judicial, administrative,
or  other  governmental body or official authorized  to
hear  evidence under oath.  AS 11.81.900(b)(41).  Thus,
the evidence tampering statute covers physical evidence
that  is pertinent to civil lawsuits and administrative
proceedings,   not  just  criminal  and  quasi-criminal
          Y.  J.  argues  that it is  unfair,  and  bad
policy,  to  make  every act of  evidence  tampering  a
felony.   But  this  is  a question  of  social  policy
entrusted   to   the  judgement  of  the   legislature.
Whatever may be the merits of Y. J.s position, he  must
address  his arguments to the legislature, not to  this


          The  judgement  of  the  superior  court   is

1Smith  v. Sampson, 816 P.2d 902, 904 (Alaska 1991);  Storrs
v. State Medical Board, 664 P.2d 547, 554 (Alaska 1983).

2Smith, 816 P.2d at 904; Storrs, 664 P.2d at 554.

3See State v. Sharpless, 715 A.2d 333, 343 (N.J. App. 1998);
State  v.  Fuqua, 696 A.2d 44, 47-48 (N.J. App.  1997).   We
discussed both of these cases in Vigue, 987 P.2d at 208-09.

4Anderson, 123 P.3d at 1118; Vigue, 987 P.2d at 211.

5Progressive  Insurance Co. v. Simmons, 953  P.2d  510,  516
(Alaska  1998);  State v. Roberts, 999 P.2d 151, 153 (Alaska
App.  2000); State v. McCallion, 875 P.2d 93, 98-99  (Alaska
App. 1994).

6See AS 11.81.900(b)(62).

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