Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Strane v. Municipality of Anchorage (3/25/2011) ap-2302

Strane v. Municipality of Anchorage (3/25/2011) ap-2302

        The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.  Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                 303 K Street, Anchorage, Alaska   99501
                                          Fax:  (907) 264-0878
                           E-mail:  corrections @


PATRICK LEE STRANE,                              ) 
                                                 )         Court of Appeals No. A-10566 
                            Appellant,           )      Trial Court No. 3AN-09-4445 CR 
             v.                                  )                   O P I N I O N 
MUNICIPALITY OF ANCHORAGE,                       ) 
                                                 )           No. 2302 - March 25, 2011 
                            Appellee.            ) 

                Appeal      from    the District    Court,    Third   Judicial   District, 
                Anchorage, David R. Wallace, Judge. 

                Appearances:       Henry   E.   Graper,   III   and   Max   D.   Holmquist, 
                Gorton,     Logue,    and  Graper,    Anchorage,     for  the  Appellant. 
                Jennifer Messick and David M. Hammond, Assistant Municipal 
                Prosecutors,     and  Dennis     A.  Wheeler,     Municipal     Attorney, 
                Anchorage, for the Appellee. 

                Before:     Coats,    Chief  Judge,   and  Mannheimer       and   Bolger, 

                BOLGER, Judge. 

                This case requires us to clarify the culpable mental state that must be proved 

in prosecutions under the Municipality of Anchorage's concealment-of-merchandise 

ordinance, Anchorage Municipal Code (AMC) 8.15.050.B.                      This ordinance makes it a 

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

crime   for   a   person   to   "knowingly   conceal"   merchandise   when   the   person   is   on   the 

premises where the merchandise is stored or is offered for sale. 

                We conclude that when a defendant is prosecuted under this ordinance, the 

government must prove that the defendant concealed the merchandise (in the sense of 

knowingly   placing   the   merchandise        where   it   would   be   out   of   sight)   and  that   the 

defendant did so with the intent of concealing - i.e.,            hiding - the merchandise from 

its rightful owner (or the owner's employees or agents). 

                In the present case, the jury was not instructed that the Municipality had to 

prove an intent to conceal from the rightful owner.               In fact, the   prosecutor actively 

argued to the jury that it was irrelevant whether the defendant acted with this intent or, 

instead, with an innocent intent when the defendant put the merchandise out of sight.  For 

this reason, we reverse the defendant's conviction. 


                On March 25, 2009, a loss-prevention officer at a downtown Anchorage 

grocery observed Patrick Strane put about a dozen items into a shopping cart.                    These 

items included a prime rib, a beef pinwheel, king crab legs, a package of ahi poke, a 

gallon of milk, and some Italian mushrooms.             The value of the prime rib and the king 

crab legs alone was approximately $80. 

                While the loss-prevention officer continued to watch Strane, Strane pushed 

his shopping cart to an area of the store where there appeared to be no one else around. 

Strane then pulled four opaque plastic bags out of his pocket - bags that carried the 

grocery store's logo, and that were the same as the ones used by store employees to bag 

customers' purchases.        Strane placed all of the items in his shopping cart into these 

plastic bags.  While Strane was loading the items into the bags, he repeatedly looked up 

and down the aisle, apparently checking to see if anyone was paying attention to him. 
                                                 - 2 -                                              2302 

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

                After   Strane   finished   bagging   the   items   in   his   cart,   he   pushed   the   cart 

toward the store exit, bypassing the check-out aisles.  However, as Strane neared the exit 

door,   he   saw   a   uniformed   store   manager   standing   nearby.      Upon   seeing   the   store 

manager, Strane pushed the shopping cart away from the exit and into the deli section 

of the store, where he abandoned the cart and all its contents.  Strane then began walking 

toward the exit again.       This time, the loss-prevention officer stopped him, and Strane 

exclaimed, "I never took the stuff out of the store." 

                Strane     was   charged     with   concealment      of  merchandise      under    AMC 

8.15.050.B.     As we indicated earlier, this ordinance states that a person commits the 

crime of concealment of merchandise if the person "knowingly conceals upon or about 

his or her   person any merchandise or thing of value upon the premises where such 
merchandise or thing of value is kept for the purposes of sale, barter or storage."1                The 

ordinance then adds "Any merchandise or thing of value found concealed upon or about 

the person and which has not theretofore been purchased by the person is prima facie 
evidence of knowing concealment."2 

                At Strane's trial, the municipal prosecutor took the position that Strane 

concealed the merchandise because he was preparing to steal it.                Strane took the stand 

and testified that he did not intend to steal from the store - that he bagged the items in 

the shopping cart because he did not want the liquid from the beef to contaminate the 

other foodstuffs. 

                When the municipal prosecutor delivered her summation to the jury, she 

argued that Strane's explanation for his conduct was unbelievable.                But the prosecutor 

also argued that it did not matter whether Strane's explanation was believable or not - 

        1   AMC 8.15.050.B. 

        2   Id. 

                                                  - 3 -                                              2302 

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

because, under the ordinance, Strane's explanation for putting the items in the bags was 


                        Prosecutor : [The ordinance requires] that you have to 
                conceal [the merchandise].         ... 

                         The   [required]   mental   state   ...   of   this   crime   ...   [is] 
                knowingly.      Pretty self-explanatory; [it means that] you do 
                something, [and] you're aware that what you're doing is of 
                that   nature.   Pretty   self-explanatory.     The   mental   state   of 
                knowingly       will   also   be   defined    for   you   [in  the   jury 
                instructions,] but it's not rocket science, okay? 

                        So basically Mr. Strane had to know that when he was 
                putting [the] items into a bag that he was concealing them; 
                that you wouldn't be able to see them.           Notice [that] what is 
                not required is for [the Municipality] to prove any kind of 
                motive, ... any kind of intent.       [Our burden is to prove just] 
                that he [did it] knowingly.  Okay?  Now, [the offense] occurs 
                at the time ... that you conceal those items.          [The ordinance] 
                doesn't say anything about walking out of a store, doesn't say 
                anything about timing, it just says you have to conceal it. 

                The jury convicted Strane, and he now appeals. 


                The elements of the crime of concealment of merchandise codified 
                in AMC 8.15.050.B 

                Strane      argues    that   the    concealment-of-merchandise            ordinance     is 

unconstitutionally vague.  A criminal statute or ordinance is unconstitutional when it is 

"so vague that [people] of common intelligence must necessarily guess at its meaning 

                                                  - 4 -                                             2302

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

and differ as to its application."3         When we consider a vagueness challenge, we may 

consider whether we can give the statute or ordinance a narrowing construction that will 
provide constitutionally adequate notice.4           In particular, a requirement of specific intent 

may protect a law from a vagueness challenge.5 

                 Nearly   thirty years ago, in  Smith v. Anchorage,  this court addressed a 

constitutional      challenge      to  an    earlier   version    of   Anchorage's       concealment-of­ 

merchandise ordinance.           We concluded that, unless the ordinance was interpreted to 

require proof of a culpable mental state, it would pose the constitutional problem of 
authorizing criminal convictions for people who had no criminal intent.7                    We therefore 

held that the ordinance should be interpreted to require the government to prove that the 
defendant acted with an intent to conceal the property.8 

                 In Smith, we acknowledged that concealment-of-merchandise ordinances 

are designed to eliminate the government's need to prove the "intent to steal" that is 
traditionally an element of larceny.9        We therefore recognized that the "intent to conceal" 

required by the Anchorage ordinance was not equivalent to an "intent to steal" or an 

        3    State v. Lawler, 919 P.2d 1364, 1365-66 (Alaska App. 1996) (quoting F/V Am. 

Eagle v. State, 620 P.2d 657, 665 (Alaska 1980)). 

        4    See Dykstra v. Anchorage, 83 P.3d 7, 9 (Alaska 2004); Stock v. State, 526 P.2d 3, 

11 (Alaska 1974). 

        5    See Turney v. State, 936 P.2d 533, 543 (Alaska 1997). 

        6    652 P.2d 499 (Alaska App. 1982). 

        7    Id . at 502. 

        8    Id . 

        9    Id. at 501-02. 

                                                    - 5 -                                                2302 

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

"intent to permanently deprive."10         However, we concluded that the ordinance would not 

be   constitutional   if   it   was   interpreted   to   apply   to   any   and   all   acts   of   concealment, 
regardless of the defendant's motive or purpose.11 

                 There is a potentially significant difference between the earlier version of 

the ordinance that we construed in Smith and the current version of the ordinance (under 

which Strane was prosecuted).            The earlier version of the ordinance defined the actus 

reus of the crime as "willfully" concealing merchandise, while the current version uses 
the   phrase   "knowingly   conceal."12        Both   Strane   and   the   Municipality   agree   that   the 

current version of the ordinance should be read to incorporate the element of "intent to 

conceal,"     and    that  the  ordinance     would     be  unconstitutional      without    that  element. 

However, Strane and the Municipality disagree as to the precise meaning of "intent to 


                 The Municipality takes the position that the "intent to conceal" required by 

Smith is merely a component of the statutory requirement that the defendant "knowingly" 

conceal the merchandise. 

                 Title   8  of   the  Anchorage      Municipal   Code       expressly    incorporates     the 
definitions   of   the   four   culpable   mental   states   used   in   the   state   criminal   code.13 As 

defined in AS 11.81.900(a)(2), the culpable mental state of "knowingly" (when applied 

to conduct) means that "the person is aware that the conduct is of that nature." 

                 The Municipality argues that, given this definition of "knowingly," and 

given the fact that Strane's jury was instructed on this definition, the jury could only 

         10 Id. at 502. 

         11 Id. at 502-03. 

         12 Id . at 500 n.1. 

         13  See AS 11.81.900(a)(1)-(4); AMC 8.05.010.B. 

                                                    - 6 -                                                2302 

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

have convicted Strane if the jurors concluded that Strane acted with an awareness that 

he   was   concealing   the   merchandise   in   the   shopping   cart.     Thus,   the   Municipality 

concludes, the jury found the element of "intent to conceal." 

                But    this  interpretation    of  "knowing      concealment"      does   not   cure  the 

ordinance of its constitutional infirmity; it does not eliminate the risk we identified in 

Smith, that people could be convicted under the ordinance even though they had no 

criminal intent. 

                 Grocery stores often have separate areas within them - for example, a 

pharmacy, an electronics center, or a café and deli - where items can be separately 

purchased, even though the person intends to continue shopping in the store.                      If the 

Anchorage concealment-of-merchandise ordinance were interpreted literally, a person 

would violate the ordinance if they made a pharmacy purchase and then placed the 

purchased item in their pocket, or in an opaque shopping bag, while they remained in the 

store   and   continued   to   shop   for   other   items. The   person   would   have   "knowingly 

concealed" merchandise while "upon the premises where such merchandise ... is kept for 
the purposes of sale, barter or storage."14 

                This result is certainly counter-intuitive.        Moreover, the second sentence 

of   the   ordinance   clearly   suggests   that   the   ordinance   was   not   aimed   at   people   who 

knowingly conceal purchased merchandise, but rather people who knowingly conceal 

unpurchased merchandise.          This second sentence states, "Any merchandise or thing of 

value found concealed upon or about the person and which has not theretofore been 

purchased by the person  is prima facie evidence of knowing concealment [for purposes 
of this ordinance]."15 

         14 AMC 8.15.050.B. 

         15 Id . (emphasis added). 

                                                  - 7 -                                              2302 

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

                In other words, it appears that the Anchorage Municipal Assembly was not 

trying    to  outlaw    a  person's    concealment      of  paid-for    merchandise,     but   only   the 

concealment of unpurchased merchandise.                 This means that the ordinance should be 

interpreted to require proof of something more than a person's mere act of knowingly 

concealing merchandise while on commercial premises. 

                In   addition,   there   are   circumstances   where   a   person   might   knowingly 

conceal an unpurchased item even though they fully intend to pay for the item before 

leaving the store.     For example, a person who is shopping with their young children 

might conceal candy from the children, even though the person has every intention of 

paying for the item at the check-out counter.           Similarly, a person who is shopping with 

their spouse might conceal an anniversary card (again, with the intention of paying for 


                The distinguishing feature of these examples is that, even though the person 

has knowingly concealed the merchandise (in the sense of knowingly placing it out of 

view), the person's purpose is not to hide the merchandise from the store owner or the 

store employees.  We conclude that the concealment-of-merchandise ordinance should 

not be read to apply to such circumstances. 

                Strane also argues that the word "conceal" and the phrase "upon or about 

their person" are unconstitutionally vague.          But these terms have an ordinary meaning 
that is commonly understood.16         A reasonable person could foresee that they commit an 

offense if they conceal merchandise in a shopping cart that they are pushing with the 

        16  See generally Bachlet v. State, 941 P.2d 200, 205 (Alaska App. 1997) (stating that 

"unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, 
common meaning" (quoting Perrin v. United States, 444 U.S. 37, 42 (1979))). 
                                                  - 8 -                                              2302 

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

intent   to  conceal   the   merchandise   from       the   store  owner.17     We   conclude   that   the 

shoplifting     ordinance      is  not  unconstitutionally      vague    if  we   apply    the  narrowing 

construction we first adopted in Smith. 

                 Accordingly, we hold that AMC 8.15.050.B must be read to require the 

Municipality to prove the following: (1) that the defendant concealed merchandise upon 

or about his person; (2) that the defendant was on the premises where the merchandise 

was   kept   for   the   purpose   of   sale,   barter,   or   storage;   (3)   that   the   defendant   had   not 

purchased      the   merchandise;      and    (4)  that  the   defendant     intended     to  conceal    the 

merchandise from the store owner or the owner's employees. 

                Application of our holding to Strane's case 

                 Strane's jury was not instructed that the Municipality was required to prove 

that he acted with the intent to conceal the merchandise from the store employees or to 

hide the fact that the merchandise had not been paid for.                Strane did not object to this 

omission at the time, but the fact remains that the jury was not asked to reach a decision 

on all the necessary elements of the offense.              Accordingly, we must reverse Strane's 

conviction unless we are convinced that this error was harmless beyond a reasonable 

                 As we explained earlier, the prosecutor at Strane's trial openly argued to 

the jury that it did not matter whether the jurors believed Strane's explanation for his 

        17  See De Nardo v. State, 819 P.2d 903, 906 (Alaska App. 1991) (addressing the 

meaning of the statutory phrase "concealed on the person"). 

        18  See generally Dailey v. State, 65 P.3d 891, 896 (Alaska App. 2003) (holding that 

constitutional   error   is   a   ground   for   reversal   of   a   conviction   unless   the   error   is   harmless 
beyond a reasonable doubt). 
                                                   - 9 -                                                2302 

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

conduct - that the offense was complete when Strane knowingly placed the groceries 

in the opaque shopping bags, regardless of his reason for doing so. 

                 Given the jury instructions and the prosecutor's argument, it is possible that 

the jury convicted Strane of concealment of merchandise even though the jurors believed 

that when Strane put the groceries in the shopping bags, he did so to ensure that the 

liquid from the beef did not leak into the   other   groceries, and not with an intent to 

conceal the merchandise from the store employees or to hide the fact that the groceries 

were   not   paid   for.  We   are   unable   to   say   that   the   failure   to   instruct   the   jury   on   the 

required culpable mental state was harmless beyond a reasonable doubt. 

                 Accordingly,   we   conclude   that   the   failure   to      instruct   the  jury   on   the 

culpable mental state was plain error, and Strane's conviction must be reversed. 


                 We REVERSE the district court's judgment.                   Strane is entitled to a new 


                                                   -  10 -                                              2302
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights