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Hillman v. State (9/23/2016) ap-2524

Hillman v. State (9/23/2016) ap-2524


          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 @



                                                                          Court of Appeals No. A-12032  

                                       Appellant,                       Trial Court No. 3AN-13-7865 CR  


                                                                                      O P I N I O N  


                                       Appellee.                        No. 2524 - September 23, 2016  


                   Appeal   from   the   District   Court,   Third   Judicial   District,  

                   Anchorage, Jo-Ann Chung, Judge.  

                   Appearances: Cynthia L. Strout, Attorney at Law, Anchorage,  


                    for the Appellant.  John H. Haley, Assistant Attorney General,  


                    Office  of  Special  Prosecutions,  Anchorage,  and  Craig  W.  


                    Richards, Attorney General, Juneau, for the Appellee.  


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


                    Superior Court Judge.*  

                    Judge ALLARD.  

                    Following a jury trial, Elizabeth Rose Hillman was convicted of promoting                     

contraband   in   the   second   degree,   AS   11.56.380(a)(1),   for   "introduc[ing],  tak[ing],  

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

Constitution and Administrative Rule 24(d).  

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

convey[ing], or attempt[ing] to introduce, take, or convey contraband into a correctional  


facility." On appeal, Hillman argues shecould not beconvicted ofpromotingcontraband  


under this subsection because this subsection was not meant to apply to individuals in  


her position (i.e., those who are incarcerated and already inside a correctional facility).  


                     For the reasons explained in this opinion, we agree that subsection(a)(1) of  


the statute does not apply to Hillman's conduct.  We therefore reverse her conviction.  


          Factual and legal background of this case  


                     Hillman  was  serving  a  jail  sentence  at  Hiland  Mountain  Correctional  


Center.  After a visit in the enclosed prison yard with a visitor who came from outside  


the correctional facility, Hillman entered the "strip-out" room - a room where inmates  


are strip-searched to prevent contraband from entering the prison from the visitor yard.  


When Hillman took off her shirt and handed it to the officer on duty, a plastic baggie fell  


to  the  floor.        The  baggie  contained  chewing  tobacco  - a  substance  prohibited  to  


prisoners.         Based  on  this  incident,  the  State  charged  Hillman  with  second-degree  


promoting contraband.  


                    Alaska  Statute  11.56.380(a)  provides  for  two  ways  that  a  person  can  


commit the crime of second-degree promoting contraband:  


                     (a) A person commits the crime of promoting contraband in  


                    the second degree if the person  


                               (1)    introduces,         takes,       conveys,        or    attempts        to  


                     introduce,  take,  or  convey  contraband  into  a  correctional  


                     facility; or  


                               (2) makes, obtains, possesses, or attempts to make,  


                     obtain,   or   possess  anything  that  person  knows  to  be  


                     contraband          while       under       official       detention        within       a  


                     correctional facility. (emphasis added)  


                                                               - 2 -                                                         2524

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

                                                                         Here, Hillman was under official detention within a correctional facility                                                                                                                                                                                                                                                                                              

when she obtained the contraband, but she was prosecuted under subsection (a)(1) of the                                                                                                                                                                                                                                                                                                                                                                                

 statute, the subsection enacted for persons who are bringing contraband into the facility.                                                                                                                                                                                                                                                                                                                                                   

                                                                         At Hillman's trial, her attorney pointed out that subsection (a)(2) - not                                                                                                                                                                                                                                                                                                                   

 subsection (a)(1) - was the portion of the statute that appeared to apply to Hillman's                                                                                                                                                                                                                                                                                                                                         

conduct, and the attorney asked the district court to grant Hillman a judgment of acquittal                                                                                                                                                                                                                                                                                                                                              

on this basis.                                                            After hearing the defense attorney's argument, the prosecutor sought to                                                                                                                                                                                                                                                                                                                           

amend the charging document to include both subsection (a)(1) and subsection (a)(2),   

and the prosecutor asked the judge to instruct the jury on both subsections.                                                                                                                                                                                                                                                                         

                                                                         The trial judge denied Hillman's motion for judgment of acquittal and the                                                                                                                                                                                                                                                                                                                     

 State's motion to amend the charge.                                                                                                                                                               The judge concluded that                                                                                                                      both  subsections applied   

to Hillman's conduct, and that the State therefore had the discretion to charge Hillman                                                                                                                                                                                                                                                                                                                                                   

under either subsection.                                            

                                                                         At the close of the trial, the jury was instructed on subsection (a)(1) only                                                                                                                                                                                                                                                                       

 (which has a lower mens rea than subsection (a)(2)), and the jury convicted Hillman of                                                                                                                                                                                                                                                                                                                                                                                     

violating that subsection.                                                

                                                                         Hillmannow appeals, renewingthesamelegal arguments                                                                                                                                                                                                                                                                 sheraised                                              below.  

The State has not cross-appealed the denial of its motion to amend the charge.                                                                                                                                                                                                                                                                                                                   

                                      Why we conclude that Hillman's conduct did not violate subsection (a)(1)                                                                                                                                                                                                                                                                                                      

                                                                         The proper interpretation of a statutory provision is a question of law that                                                                                                                                                                                                                                                                                                              


we   review   de   novo.                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                    Alaska  courts  apply  a  sliding-scale  approach  to  statutory  



                                                                                         Under this approach, the plain language of a statute is significant but  

                   1                  Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  

                  2                 Id.  

                                                                                                                                                                                                                                -  3 -                                                                                                                                                                                                                      2524

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

does not always control; rather, "legislative history can sometimes alter a statute's literal                                            



               As a general rule, "the plainer the language of the statute, the more convincing  



contrary legislative history must be." 


                       Here, the legislative history of AS 11.56.380 unambiguously demonstrates  


that the legislature intended the two subsections to apply to two different groups of  


people.  The first subsection (a)(1) was intended to apply to non-incarcerated persons  


who brought contraband from outside the correctional facility into the facility.   The  


second subsection (a)(2) was intended to apply to incarcerated persons who obtain  


contraband while they are within the correctional facility.  


                       The  Commentary  to  Alaska's  Revised  Criminal  Code  explains  this  


                      Note that the crime [of promoting contraband in the second  

                       degree] can be committed by either the person who brings the  


                       contraband  into  the  facility  (  380(a)(1))  or  the  person  


                       confined in the facility ( 380(a)(2)).  Use of the culpability  


                      term  "knows"  in    380(a)(2)  and  its  absence  in  (a)(1)  


                       indicates that the person who brings the contraband into the  


                       facility is not required to know that the item is contraband.  


                       Recklessness  is  sufficient  as  to  that  element  (  11.81.- 


                       610(b)(2)).   Such recklessness could be established by the  


                      nature  of  the  item  (i.e.,  firearm)  or  by  the  posting  by  


                       correctional officials of a list of contraband items near the  


                       entrance of the facility.5  


      3    Id.  

      4    Id.  

      5    Commentary  on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at  

79, 1978 Senate Journal 1399.  

                                                                     - 4 -                                                               2524

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

                     Thestatutory languagedirectly mirrorsthisCommentary. Subsection(a)(1)  


of  the  statute  refers  to  persons  who  introduce,  take,  or  convey  contraband  "into  a  


correctional facility." Subsection (a)(2), on the other hand, refers to persons who make,  


obtain, or possess contraband while the person "[is] under official detention within a  


correctional facility."  


                    We therefore conclude that only subsection (a)(2) of the statute applies to  


Hillman's conduct in this case.  Because Hillman was tried under subsection (a)(1), the  


district court should have granted Hillman's motion for a judgment of acquittal.  


                     The judgment of the district court is REVERSED.  


                                                               -  5 -                                                        2524

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