David JURCO, Appellant, v. STATE of Alaska, Appellee.
No. A-3382.
Court of Appeals of Alaska.
Feb. 14, 1992.
825 P.2d 909
MANNHEIMER, Judge.
When an act charged as a crime is within the jurisdiction of the United States, another state, or a territory, as well as of this state, a conviction or acquittal in the former is a bar to the prosecution for it in this state.
Clearly, Seaman cannot be prosecuted for “an act charged as a crime” in Alaska if that “act” is also within the jurisdiction of Arizona and Seaman has been convicted in Arizona. The crucial issue in this case is whether Arizona convicted for the same “act” that Seaman was prosecuted for in Alaska.1
When a defendant engages in a continuous criminal episode it can be difficult for a court to properly separate the conduct into separate criminal offenses. See Yearty, 805 P.2d at 995. However, in the instant case, it seems plain that the Alaska custodial interference charge and the Arizona custodial interference charge describe separate acts. The Alaska conviction was for Seaman‘s act of taking S.S. from the state of Alaska on or about August 2, 1988. The Arizona conviction was for custodial interference on or about March 9, 1990, over one and one-half years after Seaman removed S.S. from Alaska, and was based upon Seaman‘s act of keeping his son from the lawful custody of the son‘s natural mother. It seems clear to us that the two charges encompass different acts and could support different charges. We accordingly affirm Seaman‘s conviction.
The conviction is AFFIRMED.
MANNHEIMER, J., not participating.
A. A person commits custodial interference or visitation interference if, knowing or having reason to know that he has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody or specified visitation any child less than eighteen years of age or incompetent, entrusted by authority of law to the custody of another person or institution. . . . .
C. If committed by a parent or agent of a parent of the person taken, custodial interference is a class 6 felony unless the person taken, enticed or kept from lawful custody or visitation is returned voluntarily by the defendant without physical injury prior to arrest in which case it is a class 1 misdemeanor.
Joseph N. Levesque, Asst. Dist. Atty., Kenai, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
MANNHEIMER, Judge.
David Jurco was convicted, following a jury trial in district court, of disorderly conduct,
Unbeknown to the troopers, Jurco had recently filed for bankruptcy. The federal bankruptcy court had directed Jurco not to sell or transfer any of his property or allow creditors to take any of his property without court order. Jurco believed that the
At this point, Trooper Kallus informed Jurco that he was placing him under arrest for disorderly conduct. Kallus attempted to handcuff Jurco, but Jurco resisted; he broke free from Kallus‘s hold and ran into his house. Eventually, after Jurco spoke on the telephone with Kallus‘s superior officer, Jurco decided to come out of the house and surrender himself.
1. Regardless of the Validity of the District Court‘s Order to Seize Jurco‘s Truck, Jurco Was Properly Convicted of Disorderly Conduct and Resisting Arrest
Jurco argues that the criminal prosecution against him should have been dismissed under the supremacy clause of the United States Constitution (Art. VI, clause 2). He asserts that, because he had filed for bankruptcy, the Alaska District Court lacked power either to order forfeiture of his truck or to issue a warrant for its seizure.
But even if we assume for purposes of argument that Jurco‘s interpretation of bankruptcy law is correct, the question remains whether Jurco was entitled to forcibly resist the troopers when they came to execute the Kenai District Court‘s warrant. We conclude that Jurco was not entitled to forcibly resist the troopers even if he reasonably believed that the seizure of his truck was illegal.
As a preliminary matter, even if Jurco were legally entitled to forcibly resist the troopers’ taking of his truck—so that his attempts to thwart this taking did not constitute the crime of disorderly conduct—Jurco would still be properly charged with resisting arrest. As will be discussed in more detail below, even if a person is being subjected to unlawful arrest by police officers, Alaska law does not allow that person to use force to resist the arrest (so long as the officers do not use excessive force in making the arrest).
Jurco was charged with disorderly conduct under
At common law, a public officer was authorized to use reasonable force against other persons when executing a court order requiring or authorizing the officer to seize another person‘s property. LaFave and Scott, Substantive Criminal Law (1986), § 5.5(a), Vol. 1 at 641. This common-law rule has been codified in Alaska;
Justification: Performance of public duty.
(a) Unless inconsistent with
AS 11.81.320 —11.81.410 , conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order.(b) The justification afforded by this section also applies when . . . the person reasonably believes the conduct to be required or authorized by a decree, judg-
ment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process[.]
Under this statute, law enforcement officers are empowered to use force to execute court decrees, even if it is later shown that the court had no authority to issue the decree. Thus, in Jurco‘s case, the State Troopers were authorized to use all reasonable force to execute the Alaska District Court‘s order to seize Jurco‘s vehicle, even if Jurco was correct in claiming that the pendency of his bankruptcy petition deprived the state district court of the judicial authority to issue orders affecting his property.
However, the common law also recognized a principle that is seemingly in contradiction to the rule just discussed: a property owner was entitled to use force to resist an unlawful taking of his property. “One whose lawful possession of property is threatened by the unlawful conduct of another, and who has no time to resort to the law for its protection, may take reasonable steps, including the use of force, to prevent or terminate such interference with the property.” LaFave and Scott, Substantive Criminal Law, § 5.9(a), Vol. 1 at 668. This second common-law rule has also been codified in Alaska;
Justification: Use of force in defense of property and premises.
(a) A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services.
For purposes of deciding this appeal, we assume that Jurco reasonably believed that the Kenai District Court‘s order to seize his truck ran afoul of the federal bankruptcy court‘s order to keep his property together. In such a situation, the joint operation of
This could not have been the legislature‘s intention. With emotions running high on both sides, a property owner who sees that non-deadly force is not enough to make law enforcement officials back down might well begin (unlawfully) to use deadly force on the officers. Or, in the heat of the moment, the officers might mistakenly conclude that the property owner has begun to use deadly force upon them and respond in kind. Both possibilities could easily lead to the infliction of serious injury or death.
Thus, the question presented by Jurco‘s case is: which of these two statutes did the legislature intend to take precedence when law enforcement officers attempt to execute a court order calling for the seizure of property? We conclude that a person is not entitled to use force to resist the taking of property by law enforcement officers pursuant to a court order.
When the Alaska legislature enacted the present criminal code in 1978, modern common law had already taken the position that a person did not have the right to forcibly resist police officers performing their duty (unless the officers used excessive force). For instance, courts had restricted a citizen‘s right to use force to resist an arguably illegal search. United States v. Woodring, 536 F.2d 598, 599-600 (5th Cir.1976); United States v. Ferrone, 438 F.2d 381, 389-390 (3rd Cir.1971); State v. Doe, 92 N.M. 100, 583 P.2d 464, 466-67 (1978); and State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045–46 (1977). See also State v. Mattila, 77 Or.App. 219, 712 P.2d 832 (1986) (there is no right to use force to
The major Alaska court decision on this subject is Miller v. State, 462 P.2d 421 (Alaska 1969). In Miller, the Supreme Court confronted—and rejected—the old common-law rule that entitled a person to use non-deadly force to resist a peaceable unlawful arrest:
We feel that the legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. Such a rule helps to relieve the threat of physical harm to officers who in good faith but mistakenly perform an arrest, as well as to minimize harm to innocent bystanders. The old common law rule has little utility to recommend it under our conditions of life today.
Miller v. State, 462 P.2d at 427.
While Miller dealt with resistance to arrest, not resistance to the judicial seizure of property, attorneys and legislators could easily foresee the extension of the Miller rule to seizures of property. Under Miller, citizens having good reason to believe they were being unlawfully arrested were nevertheless obliged to submit peaceably to a deprivation of their personal liberty and await their day in court. The rule could hardly be different when, under a disputed court decree, a citizen was being deprived of a lesser interest—the possession of personal property.
The rule established in Miller, that a citizen was not entitled to use force to resist even an unlawful arrest, was the law in Alaska when the legislature began its consideration of a revised criminal code in the mid-1970‘s. The Criminal Code Revision Subcommission recommended retention and codification of the Miller rule. See Alaska Criminal Code Revision, Tentative Draft, Part 2 at 43 (proposed AS 11.21.200) and at 66 (commentary). However, the legislature specifically reinstated a citizen‘s right to forcibly resist an illegal arrest when it enacted the original version of
Justification: Use Of Force In Resisting Or Interfering With Arrest.
(a) A person may not use force to resist the arrest of himself ... by a peace officer who is known to him, or reasonably appears to be, a peace officer, whether the arrest is lawful or unlawful, unless
(2) the person resisted the arrest of himself and
(A) the arrest was unlawful;
(B) the person knew the arrest to be unlawful; and
(C) the person did not use deadly force in resisting the arrest.
The legislature did not include any similar provision in
Moreover, immediately following their reinstatement of the rule authorizing forceful resistance to an arrest, the legislature began to reconsider and recede from their decision. In 1980 (the first legislative session after the new criminal code took effect), the legislature voted to place the burden on the arrested person of proving that the resistance to the arrest was justified, and to have the trial judge, not the jury, decide the issue of the legality of the arrest. § 26 ch 102 SLA 1980. Two years later, the legislature returned to the position adopted by the supreme court in Miller, repealing all the portions of
Thus, when a person believes he or she is being arrested unlawfully by an identified police officer, Alaska law requires that person to submit peaceably to the officer and wait to litigate the validity of the arrest in a court of law. The same beneficial policies underlying this rule apply with equal
As the supreme court pointed out in Miller, society would be ill-served by a rule that allowed property owners to engage in combat with law enforcement officers whenever there was reason to doubt the validity of the court order carried by the officers. A rule allowing forcible resistance would achieve only a dubious social benefit, but it would certainly jeopardize the safety of police officers, property owners, and bystanders. To paraphrase the supreme court in Miller, the legality of a court order directing seizure of property should be determined by courts of law, not through trial by battle.
In fact, the Alaska Supreme Court recently indicated that the rule forbidding forcible resistance to law enforcement officers does indeed apply when personal property is at stake. In Thompson v. Anderson, 824 P.2d 712 (Alaska, 1992), the court ruled that a bailee of another person‘s property does not commit the tort of conversion when the bailee complies with a police demand to surrender the property to police custody—whether or not the police demand is lawful. The court stated, “[E]ven if the bailee suspects or knows that a police seizure is unlawful, . . . [t]o require a bailee to resist a police demand to turn over property would be to promote public disorder and potentially violent confrontations.” At 715.
As noted above, the Alaska legislature briefly reinstated the common-law rule that allowed such battles between officers and private citizens who disputed the legality of an arrest. Soon, however, the legislature re-established the rule and policies announced in Miller. When the legislature modified
This view of these two statutes is also supported by the fact that the Legislature has imposed an affirmative duty on citizens to assist police officers in the performance of their duties.
Refusing to assist a peace officer or judicial officer.
A person commits the offense of refusing to assist a peace officer or judicial officer if, upon a request, command, or order by someone the person knows to be a peace officer or judicial officer, that person fails to make a good faith effort to physically assist the officer in the exercise of official duties.
It would not make sense for the legislature to have meant
Our interpretation of
In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to the officer, or to call any other person to the officer‘s aid as the officer has in the execution or service of a warrant of arrest.
For these reasons, we conclude that when a person is confronted by a police officer (1) who is known to be or reasonably appears to be a police officer, and (2) who is known to be or reasonably appears to be required or authorized to take possession of the person‘s property under a judicial decree, judgement, or order, that person must submit peaceably to the officer‘s taking of the property. If there is any question regarding either the validity of the court decree itself or the scope of the officer‘s seizure of property under the de-
It follows that Jurco was not entitled to forcibly resist the State Troopers’ efforts to seize his truck under the order issued by the Kenai District Court. When he did so, and when his resistence created a hazardous condition for others, his actions formed a proper basis for a criminal charge of disorderly conduct. Our resolution of this issue also disposes of Jurco‘s claim that he was entitled to have the trial jury instructed to acquit him of disorderly conduct if they concluded that he had reasonably believed the Kenai District Court‘s order to be invalid.
2. The Troopers Could Arrest Jurco Without a Warrant
Jurco also argues that his arrest was illegal because the troopers did not have an arrest warrant. Jurco acknowledges that
When a person is stopped or contacted by a peace officer for the commission of a misdemeanor or the violation of a municipal ordinance, the person may, in the discretion of the contacting peace officer, be issued a citation instead of being [arrested], unless
(1) the person does not furnish satisfactory evidence of identity;
(2) the contacting officer has reasonable and probable cause to believe the person is a danger to self or others;
(3) the crime for which the person is contacted is one involving violence or harm to another person or to property; or
(4) the person asks to be taken before a judge or magistrate under
AS 12.25.150 .
Jurco has misread this statute.
Additionally, the facts of Jurco‘s case appear to fall within the third exception listed in the statute. Because Jurco fought with Trooper Kallus and because Jurco was in the process of dismantling and disabling his truck when he was arrested, Jurco‘s crimes involved violence and harm to property. This being so,
Finally, even if some additional justification were needed for the troopers’ decision to make an arrest instead of issue a citation, that justification was present. It was clear that Jurco was intent on thwarting the troopers’ performance of their duty under the court order directing seizure of Jurco‘s truck; the troopers could reasonably conclude that Jurco would continue to impede their efforts unless he were physically taken into custody.
3. Despite a Pre-trial Discovery Violation, Jurco Was Not Entitled to a Continuance of His Trial
Toward the end of the prosecution‘s case-in-chief, during Jurco‘s cross-examination of the State‘s final witness, Trooper Kallus, Jurco discovered that Kallus was referring to pages of a police report that Jurco did not have. The prosecuting attorney and Jurco conferred; it turned out that Jurco was missing ten pages of discovery materials. These ten pages comprised: Jurco‘s prior criminal record, three pages of a report filed by Kallus, a three-page report filed by Trooper Donna Edmond (a State‘s witness who had already testified), and a one-and-one-half-page synopsis prepared by Trooper JoAnna Roop of an interview she conducted with witness Thomas Ware (who likewise had already testified).
The parties vigorously debated whether the State had violated Alaska Criminal Rule 16 or whether Jurco had received and then lost the ten pages. The trial court eventually ruled that the State had, through oversight, failed to send the ten pages to Jurco.
Jurco finished his cross-examination of Kallus, then unsuccessfully moved for a judgment of acquittal. Immediately following the trial judge‘s denial of this motion, Jurco asked for a continuance of trial. His stated reason for seeking a continuance was that he was not a trained lawyer, this was his first criminal trial, and he felt he could not go forward without having more time to prepare. The trial judge responded that Jurco would have to be more specific.
Jurco then said he would be satisfied if he could re-call both Trooper Edmond and Thomas Ware as hostile witnesses during his defense case. Jurco claimed that Trooper Edmond‘s undisclosed report contained statements that were inconsistent with her trial testimony and that Trooper Roop‘s summary of her interview with Ware contained things that Ware had not said on the stand when he testified during the prosecution‘s case-in-chief.
The assistant district attorney announced he had no opposition to re-calling Trooper Edmond. With respect to re-calling Ware, the district attorney offered a counter-proposal: that Ware‘s entire tape-recorded interview with Trooper Roop, previously offered as Defense Exhibit A, would be stipulated into evidence, and that Trooper Roop would herself be made available as a defense witness.
Jurco initially indicated this was satisfactory, but then he decided to request a 60-day continuance. Jurco‘s only articulated reason for rejecting the proposal was that he did not know exactly what evidence he was missing—that he could not be sure what he did not have.
The prosecutor responded that no prejudice to the defense could possibly have arisen from Jurco‘s late receipt of the ten pages. The prosecutor pointed out that, after receiving the three pages of Kallus‘s report, Jurco had chosen to continue his cross-examination of Kallus rather than seek a continuance. Regarding the portions of the ten pages attributable to Trooper Edmond and Trooper Roop, both of these witnesses were still available to give testimony during the defense case—and the court had already ruled that they would be considered hostile witnesses, thus allowing Jurco to ask them leading questions. Moreover, Trooper Roop‘s synopsis of her tape-recorded interview with Ware was only that—a synopsis; Jurco had received a timely copy of the tape itself, containing Ware‘s complete statement.
The trial judge ruled that Jurco had failed to demonstrate any prejudice stemming from his late receipt of the ten pages. The judge also ruled that, since Jurco had already had one hour to examine the ten pages, and given the fact that Jurco would soon have the advantage of a long lunch break (apparently from 12:30 p.m. until 3:00 p.m.) to further examine the documents, Jurco would have plenty of time to discover any inconsistencies between previous witnesses’ testimony and the version of events related in the ten pages. For these reasons, the court denied Jurco‘s request for a continuance.
The trial judge‘s ruling on Jurco‘s request for a continuance of trial was premised on the conception that it was Jurco‘s burden to demonstrate he had been prejudiced by the State‘s failure to make proper discovery. This allocation of the burden of proof was explicitly rejected by the supreme court in Bostic v. State, 805 P.2d 344 (Alaska 1991). In Bostic, the court held that, at least in the context of mid-trial discovery violations, it is the government‘s burden to disprove prejudice rather than the defendant‘s burden to establish it. Id. at 348-49.
Jurco‘s only assertions were (1) that he was not trained as an attorney and he therefore felt uncomfortable proceeding with the trial, and (2) that he could not be sure what evidence he was missing. Neither of these assertions is sufficient to warrant a continuance.
When Jurco chose to represent himself at trial, he took on the burden of conducting the trial without formal legal training. Jurco told the trial court that, from his one-hour examination of the late-disclosed police reports, the inconsistencies between the police reports and the various witnesses’ previous testimony were clear to him. This being so, Jurco was not entitled to two months to decide how best to cross-examine the witnesses with the police reports.
As to Jurco‘s assertion that he could not be sure exactly what evidence he was missing, the trial court found that, given Jurco‘s familiarity with the case and the disclosure already made, Jurco could digest the contents of the ten new pages in the three hours available to him. Jurco never disputed the sufficiency of the three hours later in the trial.
Thus, even viewing the record in the light most favorable to Jurco—that is, employing a summary judgment standard of review because of the trial judge‘s misallocation of the burden of proof—Jurco‘s allegations of prejudice were insufficient to establish even a prima facie showing that his case had been damaged by the late disclosure of the ten pages. For this reason, we conclude that the trial judge‘s misallocation of the burden of proof was harmless error, and that Jurco was not entitled to a continuance of the trial.
Conclusion
The judgement of the district court is AFFIRMED.
BRYNER, Chief Judge, dissenting.
I disagree with the court‘s decision to affirm Jurco‘s disorderly conduct conviction. In my view, Jurco was entitled to an instruction on his theory of defense on this charge: that he was seeking to protect his property from what he reasonably believed to be an unlawful taking.
Under Alaska law, the right to use force in defense of property is expressly defined by statute. In
The majority of this court effectively amends the defense of property statute by engrafting to it an exception that the legislature evidently chose not to include. The court does so in reliance on its own notions of desirable social policy. It is not this court‘s prerogative, however, to substitute its political views for those expressed by the legislature in the clear and unrestricted language of
The court attempts to justify its decision by reliance on Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969). That case dealt with an individual‘s right to use force to resist an unlawful, but peaceable arrest by a police officer. When Miller was decided, no legislative enactment defined the right to use force in self-defense. Under the common law rule, applicable by default in the absence of controlling statute, individuals were allowed to defend themselves against unlawful arrests. The Alaska Su-
We no longer operate in a statutory void. The Alaska legislature has spoken, adopting a comprehensive statutory scheme that defines the extent to which force may be used in self-defense, as well as in defense of property. See
As an integral part of this scheme, the legislature has adopted a specific statutory provision that embodies the rule adopted in Miller, precluding the use of self-defense against a police officer who attempts to make a peaceable but unlawful arrest. See
Given the legislature‘s enactment of a comprehensive scheme regulating permissi-
We may not simply assume that the legislature acted in ignorance in failing to include additional limitations in
The legislature was fully aware of Miller when it enacted the current statutory scheme. As pointed out in the majority opinion, the legislature initially declined to follow Miller, omitting restrictions both as to self-defense and defense of property. It ultimately elected to adopt Miller‘s restrictions on self-defense. Had the legislature wanted to take the same course of action with respect to the right to use force in defense of property, it could have, and presumably would have done so.1
The presumption that the legislature knew what it was doing in omitting any exception from the defense of property statute would be overcome if the omission were irrational. But it is not. The majority opinion suggests that it makes no sense to apply the Miller rationale to self-defense without extending it to the defense of property. In fact, however, the two defenses are different and have historically been accorded disparate treatment.
Professor LaFave, for example, discusses the modern trend toward restricting the use of force in self-defense against an officer making a peaceable but unlawful arrest. See W.R. LaFave & A.W. Scott, Substantive Criminal Law § 5.7(h), at 663 (1986). LaFave makes no mention of any trend to apply similar restrictions to the defense of property. See id. at § 5.9. See also P.H. Robinson, Criminal Law Defenses §§ 131(e) & 134 (1984) (to the same effect as LaFave). Similarly, the Model Penal Code provision on the use of force in self-protection explicitly provides that use of force is not justified against a peace officer. Model Penal Code § 3.04(2)(a)(i) (1962). The code‘s provision on use of force for protection of property, however, while enumerating other limitations, contains no comparable prohibition. Id. at § 3.06(3).2
The majority opinion also suggests that, unless limited in the same way as the self-defense statute, the defense of property provision would necessarily undermine the rationale of Miller. This is simply incorrect. Miller‘s primary concern was the inherent potential for mutually escalating violence arising from the conflict between an officer‘s right to use all force reasonably necessary to effect an arrest and the individual‘s common law right to use all force reasonably necessary to defend against an unlawful arrest:
Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.
Miller, 462 P.2d at 426. No similar concern arises in the context of use of force to defend property.
To begin with, the right to use force in defense of property, as set forth in
Even more significant is the relationship between the defense of property statute and the restriction against the use of force to defend against an unlawful arrest, as set forth in
Thus, given the statutory restriction against use of force to defend against an unlawful arrest, police officers already have the ability to avoid the potential for the type of escalating violence that was the root of the court‘s concern in Miller. The addition of similar restrictions to the defense of property provision is simply unnecessary to achieve this goal.
Jurco‘s case provides an excellent illustration of the point. When Jurco resisted the seizure of his truck by conduct that Trooper Kallus believed created a hazardous condition, Kallus placed him under arrest for disorderly conduct. At that point,
The only realistic potential for escalating violence under these circumstances was the potential arising from Jurco‘s decision to continue resisting Kallus’ attempt to arrest him. Yet this is precisely the same potential for violence that will exist in any situation in which a person chooses to act in defiance of the law. It has no connection to and could not be eliminated or reduced by redefining the right to defend property.
I do not mean to suggest that the defense of property statute, as currently written, is more desirable than it would have been had the legislature restricted it in the same way as it restricted the self-defense statute. My sole point is that the statute in its present form, without a judicially-engrafted exception, is not irrational. Because it is not irrational, it is the legislature‘s prerogative, not this court‘s, to decide whether it ought to be changed as a matter of public policy.
Since Jurco was given no defense of property instruction, I would reverse his disorderly conduct conviction.3
BRYNER
CHIEF JUDGE
STATE of Alaska, Petitioner, v. The Honorable Rene GONZALEZ, Jeffrey S. DeGrasse, Carl Jahnke-Leland, and Jill Jahnke-Leland, Respondents.
No. A-4063.
Court of Appeals of Alaska.
Feb. 14, 1992.
Notes
(a) A person commits the crime of custodial interference in the first degree if the person violates AS 11.41.330 and causes the victim to be removed from the state.
(b) Custodial interference in the first degree is a class C felony.
(a) A person commits the crime of custodial interference in the second degree if, being a relative of a child under 18 years of age or a relative of an incompetent person and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child or incompetent person from a lawful custodian with intent to hold the child or incompetent person for a protracted period.
(b) Custodial interference in the second degree is a class A misdemeanor.
These cases involved prosecutions under statutes making it unlawful for a person to obstruct public officers in the performance of their duties. The Alaska counterpart isThis theory is untenable. Miller did not purport to deal with defense of property. It addressed only the issue of self-defense. The case did not decide, consider, or even mention defense of property. Moreover, the majority‘s theory ignores the basic nature of the current statutory scheme that defines use of force in self-defense, defense of property, and defense of others. The comprehensive nature of this legislation makes it apparent that the legislature meant to address this subject fully and did not merely intend to address specific issues not adequately covered by common law. In fact, if the majority view were correct in suggesting that the legislature was content with what it understood to be the common law rule of defense of property, as modified by Miller, then not only would it have been unnecessary to enact an exception to the common law rule, it would also have been unnecessary to enact the common law rule itself, which the legislature did in