author: BRYNER, Justice.

text:
    Edmond CRITTELL and Elma Crittell, Appellants, v. Laura BINGO, Thomas Bingo, Alice Masuyama, Colleen Nishiyama, Elaine Sakaitani, and Leatrice Takeuchi, Interested Parties, and the Estate of Violet M.B. Houssien, Deceased, Appellees.
    No. S-10642.
    Supreme Court of Alaska.
    Jan. 2, 2004.
    Rehearing Denied Feb. 11, 2004.

      Michael Cohn and George E. Goerig, Goer-ig & Associates, LLC, Anchorage, for Appellants.
    Richard G. Haggart, Law Offices of Richard G. Haggart, P.C., Anchorage, for Appel-lees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Edmond and Elma Crittell, the proponents of a will held to be invalid and fraudulent, appeal the superior court’s award of full attorney’s fees under Alaska Civil Rule 82, contending that the rule does not apply to probate proceedings. Alternatively, the Crit-tells argue that the trial court abused its discretion by awarding enhanced fees under Rule 82. Because Rule 82 fees may be awarded under the probate code in eases of fraudulently brought claims, we affirm the trial court’s award.

II. FACTS AND PROCEEDINGS

This is the second time this case has come before us on appeal. The underlying case involved a probate contest between the beneficiaries of competing wills of Violet Hous-sien. We summarized the relevant facts in the first appeal (Crittell I) as follows:

Shortly after Houssien died, Edmond Crittell petitioned the superior court to appoint him as the personal representative of Houssien’s estate and to accept for informal probate a will that Houssien had executed on March 22,1995. The 1995 will left a modest sum of cash to each of Hous-sien’s six siblings and gave the rest of Houssien’s [approximately $1.59 million] estate to Elma Crittell. ' The will named Edmond Crittell as executor and designated him as a contingent beneficiary in the event of a default by Elma.
Edmond Crittell’s petition for informal probate was challenged by two of Hous-sien’s sisters. The interested parties, Houssien’s sisters, ... alleged that Hous-sien lacked testamentary capacity and acted under undue influence in executing the will. In lieu of the 1995 will, the interested parties offered for probate a prior will and codicil — executed by Houssien in 1989 and 1990 — that left the bulk of Houssien’s estate tó her family.
In opposing the 1995-will at the trial, the interested parties ... sought to establish that the will was a fraud. Their theory was that Houssien lacked testamentary capacity when she signed the will, and that she acted out of undue influence as a result of the Crittells’ fraudulent conduct. To support this theory, the interested parties presented evidence tending to show that the Crittells befriended Houssien and deliberately curried her favor at a point in her life when she was particularly isolated, frail, and mentally vulnerable; that they reduced her to a state of dependency and tricked her into signing papers in blank; that on March 22, 1995, they appeared with Houssien at ... Mail Boxes, Etc., with two witnesses — one Elma Crittell, the other unknown — who signed the will in front of a notary but fraudulently misrepresented their true identities; that the Crittells thereafter arranged to have the Mail Boxes, Etc. store burglarized in order to remove the records of notarization, which might have allowed the fraudulent witnesses to be identified; and that they subsequently kept Houssien from contacting an attorney to change the 1995 will.[]

After a two-week bench trial in July 1999, the superior court ruled in favor of the interested parties, finding fraud, lack of testamentary capacity, and undue influence. The court found that the Crittells had engaged in a fraudulent scheme to induce Violet to execute the 1995 will, had fabricated documents associated with the will, and had provided false testimony regarding their participation in the fraudulent scheme. The superior court then awarded attorney’s fees under Alaska Civil Rule 68⅛ offer of judgment provision and costs under Rule 79.

The Crittells appealed. We affirmed the trial court’s decision on the merits, finding “ample evidence” to support the superior court’s finding of testamentary incapacity and “compelling evidence” of undue influence. We stated that “[o]ur review of the record convinces us that the trial court’s findings are supported by overwhelming circumstantial evidence that the Crittells overbore Houssien’s free will by their fraudulent conduct.” Applying the commonly recognized earmarks of fraud, we found ample evidence of fraudulent influence:

Judged by these common earmarks of fraudulent influence, the record easily supports the superior court’s finding of undue influence. First, although Houssien had employed attorneys to draft her prior wills, the 1995 will was produced without the aid of counsel; further, the record contains substantial evidence suggesting that the Crittells impeded Houssien’s access to counsel after the will was signed. Second, the drafting, execution, and publication of the 1995 will were shrouded in secrecy, haste, and suspicious circumstances. Third, the will exhibited an unexplained— or at least irrationally explained — change in Houssien’s attitude toward others. Fourth, the 1995 will reflects a sudden change in Houssien’s prior plan of disposition. Fifth, the will’s gift to Elma Crit-tell — almost completely excluding all other beneficiaries — certainly seems unnatural and unjust. And sixth, as we have previously discussed, Houssien’s physical and mental impairments made her particularly susceptible tet — -and a natural target of— undue influence.[]

Although we • affirmed the merits of the superior court’s ruling, we vacated the judgment and remanded on the issue of attorney’s fees, finding that the court’s award violated Rule 68(b)(2). We declined to decide other potential attorney’s fees issues because neither party had adequately briefed them, but we noted that an award of fees might be appropriate under Rule 82(b), and we indicated that the trial court would not be precluded on remand from reconsidering its initial decision to deny enhanced fees under Rule 82(b)(3).

On remand, the Houssiens moved for enhanced attorney’s fees under Rule 82(b)(3). The superior court granted the motion and awarded the Houssiens their full reasonable fees; using the Houssiens’ counsel’s total hours and standard rate to calculate them fees, the court entered a fee award of $338,668.35.

III. DISCUSSION

A. Civil Rule 82 Attorney’s Fees May Be Awarded in Probate Proceedings for Fraud Upon the Court.

The Crittells argue that the trial court erred by awarding Civil Rule 82 attorney’s fees because the civil rules do not apply to probate proceedings. They further contend that awards under Rule 82 are barred by AS 13.16.435, a provision of the probate code. Neither argument is persuasive.

In contending that Rule 82 does not apply to probate contests the Crittells insist that probate proceedings are not civil actions, and so should not be governed by the civil rules. They note that Rule 82, by its own terms, provides for awards of fees to a prevailing party only in a “civil case.”

But our Civil Rules use the term “civil action” the same way that the Federal Rules of Civil Procedure use it. Alaska Civil Rule 2 provides: “There shall be one form of action to be known as a ‘civil action.’ ” Federal Rule of Civil Procedure 2 omits the “a” before “civil action,” but otherwise contains identical language. The federal rule has been interpreted broadly:

A number of important consequences follow from [Federal Rule of Civil Procedure 2]: the forms of action are abolished, the separate equity practice of the federal courts is eliminated, the old equity rules are superseded, ... and the significance of the term “cause of action,” which formerly was a matter of serious dispute, has been eliminated. Today, there is a single procedural framework for all federal civil proceedings, regardless of the substantive claim at issue.... []

The broad meaning ascribed to “civil action” in Federal Rule 2 would seem to encompass probate actions. Here, the Crittells advance no good reason to interpret Alaska Civil Rule 2 more narrowly than its federal counterpart.

Moreover, Alaska’s Probate Rules confirm that the Civil Rules apply in Alaska probate cases when the Probate Rules fail to include a controlling provision:

Where no specific procedure is prescribed by these rules, the court may proceed in any lawful manner, including application of the Civil and Evidence Rules, applicable statutes, the Alaska and United States Constitutions or common law. Such a procedure may not be inconsistent with these rules and may not unduly delay or otherwise interfere with the unique character and purpose of probate proceedings.13

In the present ease, then, Civil Rule 82 governs the award of fees unless a specific provision of the Probate Rules applies. The Crit-tells argue that AS 13.16.435 controls the award of fees and renders Rule 82 inapplicable. Section .435 provides:

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, that person is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred![]

Relying on the provision, the Crittells maintain that a prevailing party in a will contest cannot claim Rule 82 fees from the competing party but must instead seek reimbursement of fees from the estate. To support this proposition, the Crittells cite our recent decision in Enders v. Parker. But the Crit-tells overstate the holding in Enders.

There, we held that a personal representative in a will contest cannot claim attorney’s fees from a competing personal representative under Civil Rule 82; we reasoned that section .435 specifically governs the situation, requiring the estate to reimburse a personal representative or a person nominated as a personal representative. We held that section .435 establishes three requirements for recovering fees from an estate: “[I]n order for the claimant to recover, (1) he or she must be a personal representative or nominated as a personal representative; (2) he or she must have brought or defended the proceeding in good faith; and (3) expenses must be ‘necessary1 and attorney’s fees ‘reasonable.’ ”

But here, section .435 did not apply to the interested parties’ request for fees, since they did not bring their case as personal representatives and did not claim to be persons nominated as personal representatives under either of Violet’s wills And while Edmond Crittell did claim to be the personal representative under Violet’s 1995 will, the superior court ruled Crittell had acted fraudulently in claiming to represent the estate under this will and that the will itself was fraudulent. Given these findings, which have already been determined to be well supported by the evidence, section .435 could not apply to the Crittells, since Edmond Crittell failed to meet that provision’s first requirement: he was neither the personal representative of the estate nor a person nominated as the personal representative. Because section .435 did not apply in this case, it follows that the superior court properly concluded that Civil Rule 82 governed the interested parties’ right to recover fees.

B. Awarding Enhanced Fees Was Not an Abuse of Discretion.

The Crittells alternatively argue that, even if Rule 82 applies in this case, the superior court abused its discretion by awarding enhanced fees under 82(b)(3). The superior court awarded the interested parties their full reasonable attorney’s fees “based on the complexity of the case, the reasonableness of [counsel’s] hours and hourly fees, the vexa-tiousness and bad conduct of the Crittells, and the likelihood that this enhancement would chill the exercise of true rights and claims before the court.” The court explained its reasoning for the enhanced fee award as follows:

This case was brought to the court and resulted in part due to bad conduct of the Crittells. While it is without a doubt that they helped Violet Houssien and were kind to her, it is also true that they were involved in the preparation, execution, and submission to the court of a document which took advantage of her infirmities ....
The claims of the interested parties were reasonable. The conduct of the Crittells was very questionable, given their involvement, but denial of involvement, in the preparation of the will in question.
The court finds that the behavior of the Crittells was vexatious and in bad faith to the extent they falsely represented throughout — and continue to this day — to deny their involvement in the will’s preparation and execution. Such conduct is vexatious and in bad faith and affected the length, complexity and need for a trial.

The Crittells contend initially that the superior court misapplied the phrase “vexatious or bad faith conduct” because, as used in Rule 82(b)(3), the phrase applies only to a party’s conduct in litigating a case; it does not refer to the underlying conduct upon which the claim is based. Here, the Crittells assert, even if their underlying claims were meritless, the claims were not litigated vexatiously or in bad faith.

But our case law establishes that an, award of enhanced fees under Rule 82 may be based on vexatious and bad faith litigation “both as to the filing of the case and the prosecution of it.” In awarding enhanced fees in the present case, the superior court relied on both the fraudulent nature of the Crittells’ underlying claims and the fraudulent manner in which they prosecuted their claims. And as we have already indicated, ample evidence supports the court’s findings that the will advocated by the Crittells was both conceived in fraud and advanced at trial through the Crittells’ fraudulent actions. Thus, the superior court properly applied the concept of vexatious and bad faith conduct in enhancing the attorney’s fee award.

The Crittells separately claim that the superior court’s award of enhanced fees was an unlawful award of punitive damages and violated their right of access to the courts, as guaranteed by article IV, section 3 of the Alaska Constitution and the due process clauses of the Alaska and United States Constitutions. -But these claims lack1 merit. While “[w]e have expressed concern that ‘financially ruinous’ fee awards against good faith civil litigants could deter access to the courts,” the superior court determined that the Crittells are not good-faith litigants. As the superior court noted, an award of full fees against bad-faith claimants is unlikely to deter good-faith claims, because “[pjarties who have not created false claims and who do not testify falsely will not hesitate to defend or bring cases to the court.”

Last, the Crittells assert that the attorney’s fee award will unjustly enrich the estate because the superior court failed to reduce the amount of full reasonable fees to account for an estimated tax deduction that the estate could purportedly claim for the amount of the contingent-fee obligation. But an allegation of unjust enrichment will succeed only when “the defendant has received a benefit from the plaintiff and it would be inequitable for defendant to retain the benefit without compensating plaintiff for its value.” Here, the interested parties plausibly argue that, because the superior court based its award of full reasonable fees on their attorney’s billable time rather than on the amount due under the contingent-fee contract, the award of nominally full fees falls several hundred thousand dollars short of the amount that they will actually owe for fees. According to the estate, then, the fee award would not result in a net benefit, even assuming that the estate is eligible to receive a tax deduction for fees.

The Crittells do not refute this argument; nor do they explain why it would be unjust for the estate to retain any benefit received under these circumstances. Because the Crittells have failed to establish either that the full-fee award will result in a net benefit to the estate or that it would be unjust for the estate to retain any benefit it might receive, we find no merit to the Crittells’ unjust enrichment claim.

IV. CONCLUSION

For these reasons, we AFFIRM the superior court’s award of attorney’s fees.

      . Crittell v. Bingo, 36 P.3d 634, 636-37 (Alaska 2001).

      . Id. at 637-38.

      . Id. at 647-52 (appendix containing superior court’s findings).

      . Id. at 641-42.

      . Id. at 642.

      . Id.

      . Id. at 636, 643.

      . Id. at 643.

      . The Crittells make parallel arguments regarding the trial court's award of Rule 79 costs. Because the Crittells neither appealed the cost award in Crittell I nor adequately raised the issue on remand, the Crittells have waived any claim as to costs. See State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 873-74 (Alaska 2003) (holding that state had waived argument because it could have been raised in an earlier appeal but was not and because it fell outside the scope of remand); Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (stating that an argument not raised below is waived).

      . We review a trial court's interpretation of statutes and court rules under the independent judgment standard. Enders v. Parker, 66 P.3d 11, 13-14 (Alaska 2003); see also Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270-71 (Alaska 2002) (statutory interpretation and application is a question of law); Reich v. Comineo Alaska, Inc., 56 P.3d 18, 21 (Alaska 2002) (interpretation of civil procedure rule is a question of law).

      . Alaska Civil Rule 82 provides, in part:
      (a) Allowance to Prevailing Party. Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.

      . Fed.R.Civ.P. 2.

      . 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1042 (3d ed.2002); see also Copper Valley Trading Co. v. Kratz, 513 P.2d 1113, 1115 (Alaska 1973) (quoting very similar passage from another federal treatise and citing Wright & Miller § 1042); cf. Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935) (“[Sjuits of a civil nature within the meaning of [section 24(1) of the Judicial Code] are those which do not involve criminal prosecution or punishment, and which are of a character traditionally cognizable by courts of common law or of equity.”).

      . Alaska Probate Rule 1(e).

      . AS 13.16.435 (emphasis added).

      . 66 P.3d 11, 17 (Alaska 2003).

      . Id. at 17.

      . Id. at 15.

      . The Crittells cursorily argue that the interested parties acted as de facto personal representatives and should be treated as personal representatives because the nominal personal representative ratified their litigation. But the Crittells failed to raise this argument in the trial court, and they developed it on appeal primarily in their reply brief. We therefore conclude that the argument has been waived. See, e.g., Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1255 n. 61 (Alaska 2001) ("This court will not consider arguments on appeal that were not raised below unless the new issues either establish plain error or do not depend on new or controverted facts, are closely related to the appellant’s arguments at trial, and could have been gleaned from the pleadings.”); Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”); Alaska R.App. P. 212(c)(3) (providing that reply brief "may raise no contentions not previously raised in either the appellant's or the appellee’s briefs”).

      .Civil Rule 82(b)(3) provides, in relevant part;
      (3) The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted:
      (A) the complexity of the litigation;
      (B) the length of trial;
      (C) the reasonableness of the attorneys’ hourly rates and the number of hours expended;

        (F) the reasonableness of the claims and defenses pursued by each side;
      (G) vexatious or bad faith conduct;

      (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts.
      An award of full attorney’s fees is manifestly unreasonable in the absence of a finding of bad faith or vexatious conduct. Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 605 (Alaska 1999); State, Child Support Enforcement Div. v. Allsop, 902 P.2d 790, 795 (Alaska 1995); Demoski v. New, 737 P.2d 780, 788 (Alaska 1987). An award of full, actual attorney's fees due to bad faith or vexatious conduct is reviewed for abuse of discretion. E.g., Allsop, 902 P.2d at 795.

      . Garrison v. Dixon, 19 P.3d 1229, 1234 (Alaska 2001).

      . Although the Crittells insist that they did not litigate their claims vexatiously or in bad faith, they focus their argument on their attorney's conduct and rely on cases construing Alaska Civil Rule 11 to support the conclusion that their attorney did nothing improper. But the professionalism and conduct of the Crittells' attorney was never at issue here. As the trial court stated, "The enhancement of attorney fees against a party is due to the parties' behavior, not the conduct of counsel." Nothing in -the superior court's ruling or in this opinion suggests any impropriety on the part of the Crittells’ counsel. Thus, Civil Rule 11, which governs the conduct of attorneys, not clients, has no relevance here.

      . Reid v. Williams, 964 P.2d 453, 462 (Alaska 1998) (emphasis added).

      . Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988); see also Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 107 (Alaska 2001) ("[T]he doctrine of unjust enrichment is predicated on the theory of restitution: When a party unjustly receives, retains, or appropriates property or a benefit, the party should repay the source of the property or benefit.”).

        .See id.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    David S. NOY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8327.
    Court of Appeals of Alaska.
    Aug. 29, 2003.
    Rehearing Denied Nov. 14, 2003.

      William R. Satterberg, Jr., Law Offices of William R. Satterberg, Jr., Fairbanks, for Appellant.

      Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury convicted David S. Noy of violating AS 11.71.060(a), which prohibits possession of less than eight ounces of marijuana. The marijuana was found in Noy’s home. Noy appeals his conviction, arguing that he was convicted for engaging in conduct (possession of marijuana for personal use in one’s home) that is protected by the privacy provision of the Alaska Constitution (article I, section 22).

We agree that Noy may have been convicted for conduct that is constitutionally protected. As we explain here, Alaska citizens have the right to possess less than four ounces of marijuana in their home for personal use. Accordingly, we reverse Noy’s conviction. The State remains free to retry Noy if the State believes it can prove that Noy possessed at least four ounces of marijuana.

Noy also claims that the district court should have allowed him to raise the defense of medical necessity. However, as we explain, the district court properly rejected Noy’s proposed defense.

Facts of the case

The North Pole police contacted Noy at his home and told him they smelled growing marijuana. The police searched Noy’s house and found approximately eleven ounces of harvested marijuana, consisting of buds, leaves, and stalks. The police also found five immature marijuana plants. The police did not, however, find any scales or packaging material; nor was there any other evidence that Noy was engaged in any commercial conduct involving marijuana.

Except for the immature plants, all the plant material — including the buds, leaves, and stalks — was placed in a paper bag and sent to the state crime lab for identification and weighing. The immature plants were not tested, nor did they form part of the State’s case. Ultimately, Noy was charged with possessing more than eight ounces of harvested marijuana.

At trial, however, the State did not offer the paper bag in evidence. Therefore, the jury had to rely on testimony and photographs showing what the police had placed in the bag. Based on the testimony and photographs, the paper bag obviously contained stalks along with buds and leaves. Among other things, the jury was instructed that “[m]arijuana means the seeds, leaves, buds, and flowers of the plant, Cannabis, whether growing or not, but it does not include the stalks of the plants, or fiber produced from the stalks.” The jury found Noy not guilty of possessing eight ounces or more of marijuana, but guilty of possessing less than eight ounces.

Alaska Statute 11.71.060(a)(1), the statute that prohibits possession of less than eight ounces of marijuana under any and all circumstances, violates article I, section 22 of the Alaska Constitution as construed in Ra-vin v. State

Noy was convicted under AS 11.71.060(a)(1), which makes it a class B misdemeanor to use or display any amount of marijuana, or to possess “one or more preparations, compounds, mixtures, or substances” containing marijuana “of an aggregate weight of less than one-half pound.” This statute criminalizes conduct that the Alaska Supreme Court has declared is protected under article I, section 22 of the Alaska Constitution.

Article I, section 22 states: “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

In Ravin, the Alaska Supreme Court held that this provision of our constitution protects possession of marijuana for personal use in one’s home. The court acknowledged that there is no fundamental right to possess' or ingest marijuana. Nevertheless, the court held that article I, section 22 gives people a heightened expectation of privacy with respect to their personal activities within their home. The court held that this heightened right of privacy “encompass[ed] the possession and ingestion of ... marijuana in a purely personal, non-commercial context in the home” unless the state could show that such an intrusion into people’s privacy bore “a close and substantial relationship'... to a legitimate governmental interest” — that is, unless the state proved “that the public health or welfare [would] in fact suffer” if private possession of marijuana were not prohibited.

The supreme court concluded that the state had demonstrated a substantial interest in regulating the use of marijuana by drivers, in prohibiting the use of marijuana by children, in regulating the use or possession of marijuana in public places, and in regulating the buying and selling of marijuana. The supreme court added that the state could validly prohibit “[pjossession at home of amounts- of marijuana indicative of [an] intent to sell rather than possession for personal use.” However, the court concluded that the state had shown “no adequate justification for ... prohibiting] possession of marijuana by an adult for personal consumption in the home.”

In 1975, following the supreme court’s decision in Ravin, the Alaska Legislature amended AS 17.12 (the then-existing marijuana laws) to take into account the supreme court’s ruling. The legislature exempted marijuana from the normal penalties for possession of “depressant, hallucinogenic, or stimulant drugs” and enacted two special provisions governing marijuana possession:former AS 17.12.110(d) and (e).

Former AS 17.12.110(d) prohibited public use of marijuana, possession of more than an ounce of marijuana in a public place, possession of any amount of marijuana while operating a motor vehicle or airplane, and possession of any amount of marijuana by a minor. The maximum penalty for violating these provisions was a fine of $1,000.

Former AS 17.12.110(e) prohibited possession by an adult of one ounce or less of marijuana in a public place. It also prohibited possession by an adult of any amount of marijuana for personal use in a non-public place. This second provision clearly encom--passed possession of marijuana in one’s home for personal use — conduct that, in Ravin, the supreme court had said was protected from governmental intrusion. However, the legislature declared that there was no criminal penalty for violating subsection (e); rather, the offender faced a “civil fine of not more than $100.”

Seven years later, in 1982, the legislature moved Alaska’s drug laws from Title 17 to Title 11. The provisions of AS 17.12 dealing with marijuana were repealed, and new marijuana provisions were enacted in AS 11.71. In this 1982 revision of the marijuana laws, the legislature dropped the civil fine for possession of marijuana for personal use in a non-public place — thus ending any potential conflict with Ravin.

Under the newly enacted AS 11.71.050(a)(3)(E), possession of eight ounces or more of marijuana was made a class A misdemeanor. Under the newly enacted AS 11.71.060(a)(4), possession of four ounces or more of marijuana was made a class B misdemeanor. The legislature also made it a violation to possess any amount of marijuana in a public place. However, no statute prohibited possession of less than four ounces of marijuana for personal use in a non-public place.

In other words, following the legislature’s 1982 revision of the marijuana laws, there was no penalty (whether criminal or civil) for possessing less than four ounces of marijuana in one’s home for personal use. But this changed in 1990.

In the general election of 1990, the voters of Alaska approved a ballot proposition that amended AS 11.71.060(a) and repealed AS 11.71.070. Under the amended (that is, the current) version of AS 11.71.060(a), possession of any amount of marijuana less than eight ounces is a class B misdemeanor. This is the statute that Noy violated.

The question presented in this case is whether AS 11.71.060(a) is constitutional to the extent that it prohibits possession of marijuana by adults in their homes for personal use.

On one level, the answer is straightforward. The Alaska Supreme Court ruled in Ravin that the right of privacy codified in article I, section 22 of our state constitution protects the right of adults to possess marijuana in their homes for personal use. When a statute conflicts with a provision of our state constitution, the statute must give way. Thus, a statute which purports to attach criminal penalties to constitutionally protected conduct is void.

On a deeper level, the question is whether the voters of Alaska can, through the initiative process, abrogate a constitutional ruling of the Alaska Supreme Court — in particular, the court’s ruling in Ravin that article I, section 22 of our state constitution protects an adult’s right to possess marijuana in the home for personal use. The answer to this question is found in the Alaska Constitution itself. Article XII, section 11 states that the people of this state, through the ballot initiative process, may exercise “the law-making powers assigned to the legislature” (subject to the limitations codified in article XI of the constitution). That is, the initiative process constitutes a method by which the people of this state can directly enact legislation.

But just as the statutes enacted through the normal legislative process must not violate the constitution, the statutes enacted by ballot initiative must not violate the constitution. Thus, even though the voters enacted AS 11.71.060(a)(1) through the initiative process, the constitutionality of this statute must be assessed in the same way as if it had been enacted through the normal legislative process. And, as we have said, this statute contravenes the constitutional right of privacy as interpreted by our supreme court in Ravin — because it declares that any possession of marijuana by adults in their homes for personal use is a crime.

Alaska Statute 11.71.060(a) must be limited to preserve its constitutionality

We have concluded that AS 11.71.060(a)(1) is unconstitutional to the extent that it proscribes marijuana possession that, under the Ravin decision, is protected by article I, section 22 of the Alaska Constitution. But this does not mean that the statute is unconstitutional in its entirety. In Ravin, the supreme court acknowledged that the legislature could validly prohibit possession of marijuana in the home if the marijuana was of such a quantity as to be “indicative of [possession with] intent to sell rather than possession for personal use.” Thus, in Walker v. State we held that the legislature could validly prohibit possession of eight ounces or more of marijuana — even if the marijuana was possessed by an adult in their home for personal use.

The question inherent in this analysis is whether, consistent with Ravin, the legislature might validly prohibit all instances of marijuana possession in some amount less than eight ounces. As we noted in Walker, the Ravin decision “does not elaborate on what amount of marijuana might constitute an ‘amount ... indicative of intent to sell.’ ”

Before the marijuana laws were amended by voter initiative in 1990, the Alaska Legislature had (by statute) defined the amount of marijuana that adults could lawfully possess in their home for personal use. Under the pre-1990 statutes governing marijuana possession, an adult could be prosecuted for possessing four ounces or more of marijuana in their home for personal use. Possession of less than this amount was not a crime.

There are no appellate cases testing the constitutionality of the legislature’s four-ounce dividing line. However, Noy has not argued that this four-ounce dividing line violates Ravin. We note, moreover, that article I, section 22 entrusts the legislature with the duty of implementing the constitutional right of privacy. Given the language of article I, section 22, and given the deference that we should pay to the decision of a co-equal branch of government, we conclude that the legislature’s four-ounce dividing line is presumptively constitutional under Ravin.

Although we have declared that the current version of AS 11.71.060(a) is unconstitutional (because it prohibits conduct that is constitutionally protected), we have a duty to preserve the statute to the extent possible — that is, to the extent that it is consistent with the constitution. The pre 1990 version of the statute contained a four-ounce ceiling on marijuana possession in the home by adults for personal use — a ceiling that is presumptively constitutional. The 1990 voter initiative expanded the scope of AS 11.71.060(a) by eliminating this four-ounce ceiling and declaring that all possession of marijuana by adults in their homes for personal use was illegal. In this new version, the statute violates article I, section 22 of the constitution. To make the statute conform to the constitution again, we must return it to its pre-1990 version.

We thus conclude that, with respect to possession of marijuana by adults in their home for personal use (conduct that is protected under the Ravin decision), AS 11.71.060(a)(1) remains constitutional to the extent that it prohibits possession of four ounces or more of marijuana. Restricted in this fashion, AS 11.71.060(a)(1) remains enforceable.

Noy is entitled to a new trial

We have ruled that AS 11.71.060(a) validly continues to prohibit possession of four ounces or more of marijuana, even when the possession is by adults in their home for personal use. But it is possible that the jury convicted Noy even though they believed that he possessed less than this amount. For this reason, we must reverse Noy’s conviction.

As explained earlier in this opinion, Noy was prosecuted under AS 11.71.050(a) for possessing eight ounces or more of marijuana. The jury acquitted Noy of this charge, but convicted him under AS 11.71.060(a) for possessing some amount of marijuana less than eight ounces. The problem is that the jury was not asked to determine what lesser amount of marijuana Noy possessed.

The State remains free to retry Noy for marijuana possession. However, because the jury acquitted Noy of possessing eight ounces or more of marijuana, the State is collaterally estopped from asserting that Noy possessed eight ounces or more. The State can, however, claim that Noy possessed at least four ounces of marijuana — enough to justify a conviction under AS 11.71.060(a)(1) (as we now have limited it).

Was Noy entitled to raise a common laiv defense of medical necessity?

At trial, Noy argued that he was entitled to have the jury decide whether his possession of marijuana was justified by medical necessity under AS 11.81.320. The trial judge, District Court Judge Jane F. Kauvar, ruled that Noy could not avail himself of the normal defense of necessity under AS 11.81.320. Rather, Judge Kauvar ruled, Noy could only assert the affirmative defense for the medical use of marijuana codified in AS 11.71.090.

Judge Kauvar’s ruling was based on the wording of AS 11.81.320. This statute declares that the defense of necessity remains available “to the extent permitted by common law” unless “[Title 11 or another] statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved,” or unless “a legislative intent to exclude the justification of necessity ... otherwise plainly appear[s].”

Judge Kauvar noted that the legislature has enacted another statute, AS 11.71.090, that specifically deals with the defense of medical necessity for the possession of marijuana. Because of this, Judge Kauvar ruled that Noy’s claim of medical necessity for his possession of marijuana had to be raised and litigated under AS 11.71.090 rather than under the general necessity defense codified in AS 11.81.320.

This ruling was correct. The general necessity defense statute, AS 11.81.320, expressly states that a more specific statute takes precedence. Noy asserted that he had a medical need to use marijuana. Alaska Statute 11.71.090 specifically addresses this issue, and defines a separate affirmative defense of medical necessity to possess marijuana. Noy’s claim of necessity was therefore governed by the specific necessity statute, AS 11.71.090, rather than by the general necessity statute, AS 11.81.320.

Jury instnctions

Noy does not contest the jury instructions that were given at his trial. However, because Noy may be retried, we believe we should address the State’s contention that Judge Kauvar inaccurately instructed the jury concerning how to determine the weight of harvested marijuana.

Judge Kauvar properly instructed the jury that “[mjarijuana means the seeds, leaves, buds, and flowers of the plant[.]” But Judge Kauvar also instructed the jury that the aggregate weight of a live marijuana plant was “the weight of the marijuana when reduced to its commonly used form.” Based on this instruction, Noy urged the jury to consider only the aggregate weight of the “buds” in determining how much marijuana he had possessed. But the “commonly used form” of marijuana is only relevant when a person is charged with possessing live marijuana plants. Noy was only charged with possessing harvested marijuana. Therefore, in the event of a retrial, assuming the State again charges Noy with possessing only harvested marijuana, the district court should not instruct the jury on how to determine the aggregate weight of live marijuana, or allow the parties to argue about the definition of the “commonly used form” of marijuana.

Conclusion

To make AS 11.71.060(a)(1) consistent with article I, section 22 of the Alaska Constitution as interpreted in Ravin, we must limit the scope of the statute. As currently written, the statute prohibits possession of any amount of marijuana. But with regard to possession of marijuana by adults in their home for personal use, AS 11.71.060(a)(1) must be interpreted to prohibit only the possession of four ounces or more of marijuana.

The judgment of the district court is REVERSED.

      . See Ravin v. State, 537 P.2d 494 (Alaska 1975).

      . AS 11.71.060(a)(1) & (b).

      . Ravin, 537 P.2d at 504-12.

      . Id. at 504, 511.

      . Id. at 511.

      . Id.

      . Id.

      . Former AS 17.12.110(a), as amended by ch. 110, § 1, SLA 1975.

      . Ch. 110, § 1, SLA 1975.

      . Ch. 45, § 26, SLA 1982 (the repeal of AS 17.12) and § 2 (the enactment of AS 11.71).

      . The 1982 version of AS 11.71.060(a) also prohibited use of marijuana in a public place, or possession of one ounce or more of marijuana in a public place, or possession of any amount of marijuana while operating a motor vehicle, or possession of any amount of marijuana by a person under 19 years of age.

      . Former AS 11.71.070(a)(2).

      . 1990 Initiative Proposal No. 2, §§ 1-2.

      . AS 11.71.060(a)(1) and (b).

      . See Falcon v. Alaska Public Offices Comm'n, 570 P.2d 469, 480 (Alaska 1977); Ravin, 537 P.2d at 511.

      . See Alaskans for Legislative Reform v. State, 887 P.2d 960, 962, 966 (Alaska 1994); Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162, 168 (Alaska 1991).

      . 537 P.2d at 511.

      . 991 P.2d 799 (Alaska App.1999).

      . Id.

      . Id. (quoting Ravin, 537 P.2d at 511).

      . See former AS 11.71.060 and AS 11.71.070.

        .See Hoffman v. State, 404 P.2d 644, 646 (Alaska 1965) (ruling that if a statute may be reasonably construed to avoid unconstitutionality, the court must do so).

      . AS 11.81.320(a)(l)-(2).

      . See AS 11.71.900(14).

      . See Maness v. State, 49 P.3d 1128, 1134 (Alaska App.2002) (quoting Gibson v. State, 719 P.2d 687, 690 (Alaska App.1986)) (the “commonly used form” language of AS 11.71.080 "refers to the method of calculating the aggregate weight of live marijuana plants”).


author: MANNHEIMER, Judge.

text:
    David S. NOY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8327.
    Court of Appeals of Alaska.
    Nov. 14, 2003.
    William R. Satterberg, Jr., Fairbanks, for the Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION ON REHEARING

MANNHEIMER, Judge.

In Ravin v. State, 537 P.2d 494 (Alaska 1975), the Alaska Supreme Court held that the privacy clause of the Alaska Constitution (Article I, Section 22) protects the possession of marijuana in one’s home for personal use. In 1990, the voters of Alaska enacted AS 11.71.060(a), which purports to criminalize the possession of any amount of marijuana, even when the marijuana is possessed in one’s home for personal use. In our initial opinion in this case — Noy v. State, Alaska App. 83 P.3d 538, 2003 WL 23207968 (2003) —we held that this statute is unconstitutional because it conflicts with the right of privacy recognized in the Ravin decision. However, we concluded that the statute could be preserved to the extent that it prohibits possession of four ounces or more of marijuana.

The State now seeks rehearing. In its petition for rehearing, the State argues that this Court’s initial opinion is flawed in some half-dozen ways, but most of the State’s arguments ultimately rest on one underlying assertion: that we misunderstood the nature of the Alaska Supreme Court’s decision in Ravin.

In our initial decision in this case, we read the Ravin opinion to say that the privacy clause of the Alaska Constitution restricts the legislature’s (and the voters’) authority to enact laws prohibiting the possession of marijuana in one’s home for personal use. The State contends that this view of Ravin is fundamentally flawed — that Ravin did not announce a constitutional restriction on the government’s law-making power.

According to the State, Ravin did not hold that Article I, Section 22 of the Alaska Constitution restricts the government’s authority to enact statutes that prohibit possession of marijuana in one’s home for personal use. Rather, Ravin restricted the government’s authority to enforce such statutes — by creating an affirmative defense that individual defendants can raise if they are prosecuted for violating such a statute.

The State argues that this defense is similar to a claim of entrapment or selective prosecution, in that it does not rest on a claim that the defendant is innocent of wrongdoing, but rather on a claim that the government violated constitutional guarantees when it singled out this particular defendant as the target of prosecution. According to the State, Ravin stands for the proposition that, in any prosecution for possession of marijuana in one’s home, the defendant can assert that the possession was of a small amount for personal use. If the defendant raises such a claim, the matter is decided (before trial) by a judge, not a jury. To defeat the proposed defense, the State would have to prove either (1) that the marijuana was not for personal use, or (2) that the government had a sufficient interest in prohibiting the possession of that particular amount of marijuana under the specific circumstances of that defendant’s case.

In other words, the State argues that Ra-vin created a system in which the constitutionality of marijuana prosecutions would be decided by trial judges on a case-by-case basis — and that, in these case-specific hearings, the State would repeatedly try to convince numerous different judges that there is a sufficient government interest to justify imposing criminal penalties on people who possess varying amounts of marijuana.

The State’s proposed interpretation of the Ravin decision would seemingly put us on the road to legal chaos. Under the State’s proposal, dozens of judges across the state would be required to issue potentially inconsistent rulings as to whether, under the facts of a particular defendant’s case, the State had sufficient justification to criminalize the defendant’s possession of 3.0 ounces, or 2.2 ounces, or 1.4 ounces, or 0.6 ounces of marijuana.

However, our primary reason for rejecting the State’s interpretation of Ravin is that the State’s interpretation is inconsistent with Ra-vin itself.

The Ravin decision does not speak of an affirmative defense of the type proposed by the State in its petition for rehearing, nor does the Ravin opinion describe itself as establishing case-specific limits on the State’s enforcement of marijuana statutes. Rather, in the opening sentence of Ravin, the Alaska Supreme Court described the issue before them as “[t]he constitutionality of Alaska’s statute prohibiting possession of marijuana”. Later in the opinion, after the supreme court held that Article I, Section 22 of our state constitution guarantees a right of privacy in one’s home, the court declared that two major questions remained:

whether the State has demonstrated sufficient justification for the prohibition of possession of marijuana in general ... and ... whether the State has met the greater burden of showing a close and substantial relationship between the public welfare and control of ingestion or possession of marijuana in the home for personal use.

Bavin, 537 P.2d at 504.

The supreme court then proceeded to analyze the scientific data concerning the uses and effects of marijuana. The court did not attempt to analyze the particular facts of Irwin Ravin’s case; rather, the court assessed the legislature’s overall justification for regulating any person’s possession of marijuana in their home.

And when the Bavin court announced its conclusion, the court did not frame that conclusion in terms of whether the State had an interest in prohibiting the possession of marijuana under the particular facts of the case before it. Instead, the court framed its conclusion as a general restriction on the government’s authority to legislatively control this aspect of people’s personal behavior:

[W]e conclude that [the state has shown] no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home[.] The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.
The state has a legitimate concern with avoiding the spread of marijuana use to adolescents who may not be equipped with the maturity to handle the experience prudently, as well as a legitimate concern with the problem of driving under the influence of marijuana. Yet these interests are insufficient to justify intrusions into the rights of adults in the privacy of their own homes.

Bavin, 537 P.2d at 511.

In the years since Bavin was decided, there has been no suggestion (until now) that Bavin was something other than normal constitutional litigation in which the supreme court adjudicated the constitutionality of a particular category of criminal statute. For example, six months after Bavin, in Belgarde v. State, the supreme court referred to Bavin as “[a] case [in which] we held that the state may not prohibit possession of [marijuana] by an adult in [their] home for personal consumption”. In 1978, in State v. Erickson, the supreme court again declared that Bavin represented a restriction on the state’s power to legislate:

In Bavin v. State, this court held that the state could not bar the personal use and possession of marijuana in the home. In view of the relative harmlessness of the drug, the individual’s right to privacy under the Alaska Constitution was found to outweigh the state interest in regulation.

574 P.2d 1, 21 (Alaska 1978) (footnote omitted). And more recently, in Luedtke v. Nabors Alaska Drilling, Inc., the supreme court declared that “Bavin addressed the issue of whether the state could prohibit the use of marijuana in the home. We held that it could not.”

Based on this analysis of the Bavin decision and the later supreme court decisions construing Bavin, we are convinced that the State’s interpretation of Bavin is wrong. Bavin did not create an affirmative defense that defendants might raise, on a case-by-case basis, when they were prosecuted for possessing marijuana in their home for personal use. Instead, both in the Bavin opinion itself and in the supreme court’s later descriptions of Bavin, the Alaska Supreme Court has repeatedly and consistently characterized the Ravin decision as announcing a constitutional limitation on the government’s authority to enact legislation prohibiting the possession of marijuana in the privacy of one’s home.

Accordingly, we reject the State’s suggestion that Ravin left Alaska’s marijuana statutes intact but created an affirmative defense to be litigated in each individual case.

Although this is not a factor in our interpretation of Ravin, we note that the Alaska Legislature took this same view of Ravin when they refashioned this state’s drug laws twenty years ago. As we described in Walker v. State, the legislature responded to Ravin in 1982 by enacting a statute — former AS 11.71.060(a)(4) — that prohibited possession of four ounces or more of marijuana, even if the marijuana was possessed in one’s home for personal use. In the commentary that accompanied this statute, the legislature declared:

[Tjhis legislation is intended to clarify the law in Alaska concerning possession of marijuana, in light of the decision of the Supreme Court of Alaska in Ravin v. State, 537 P.2d 494 (Alaska 1975). Ravin held that Alaska’s constitutional right to privacy protects the possession and use of marijuana by an adult, in the home, in amounts indicative of personal use in a purely personal, non-commercial context. The approach taken in this Act is to define, for purposes of the decision in Ravin, an amount which is indicative of personal use, and to provide a clear line of demarcation of four ounces, so that citizens of this state will know precisely what conduct is prohibited.

Commentary and Sectional Analysis for the 1982 Revision of Alaska’s Controlled Substances Laws (CCSB 190), p. 19 (quoted in Walker v. State, 991 P.2d at 802-03).

Thus, not only is the State’s suggested interpretation of Ravin at odds with the supreme court’s statements on this question, but it is also at odds with the Alaska Legislature’s announced policy aims in this area of the law: the aim of “defin[ing], for purposes of ... Ravin, [a specific] amount which is indicative of personal use”, and the aim of “providing] a clear line of demarcation ..., so that citizens of this state will know precisely what conduct is prohibited”.

We now address certain other aspects of the State’s petition for rehearing.

In our original decision in this case, we stated that because the jury acquitted Noy of the charge of possessing eight ounces or more of marijuana, the State is barred from asserting, in any future litigation, that Noy did indeed possess eight ounces or more of marijuana. The State argues that this conclusion is mistaken for two reasons.

First, the State contends that the doctrine of collateral estoppel does not apply when the aggrieved party had no method of seeking appellate review of the adverse judgement. The State points out that the double jeopardy clauses of the federal and state constitutions preclude the State from seeking appellate review of a jury’s verdict of acquittal. Thus, the State argues, the fact that Noy’s jury acquitted him of possessing eight ounces or more of marijuana should not estop the State from continuing to assert that Noy possessed more marijuana than the jury found.

The problem with the State’s argument is that it is directly contrary to the United States Supreme Court’s holding in Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195-96, 25 L.Ed.2d 469 (1970).

Second, the State argues that the jury’s acquittal should not be considered conclusive because the jury was misinstructed on how to calculate the weight of marijuana. The State asserts that, given the evidence presented at Noy’s trial, it is obvious that Noy possessed at least eight ounces of marijuana, and therefore the jury’s verdict of acquittal must have been the fruit of the flawed jury instruction.

But as we explained in our initial opinion, the State did not introduce the marijuana itself; instead, the State relied on photographs and testimony concerning the marijuana. The photographs showed that the marijuana contained stalks, not just leaves and buds. Even if the jury had been correctly instructed, they would have been told that stalks are not to be considered when assessing the weight of harvested marijuana. Although there may be a substantial possibility that the erroneous weight-calculation instruction influenced the jury’s thinking when they assessed the weight of the marijuana, it is also possible that the jurors were not convinced beyond a reasonable doubt that the harvested marijuana, minus the stalks, weighed eight ounces or more. Thus, we must apply the collateral estoppel rule of Ashe v. Swenson. See our discussion of a related point in State v. McDonald, 872 P.2d 627, 660 (Alaska App.1994).

Moreover, even if we assume that the erroneous jury instruction played an instrumental role in the jury’s decision to acquit Noy of possessing eight or more ounces of marijuana, the State would still be bound by the jury’s verdict. The law on this point is summarized in Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed.1999):

If the jury reaches a verdict of acquittal or the judge grants a judgment of acquittal, double jeopardy bars a new trial even if it appears that the acquittal was based on an erroneous interpretation of the law.

Id., § 25.1(g), Vol. 5, p. 648. See also id., § 25.3(b), Vol. 5, pp. 666-68.

This view of the double jeopardy clause is borne out in the case law. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); Livingston v. Murdaugh, 183 F.3d 300, 301-02 (4th Cir.1999).

Finally, the State argues for the first time that if we adjudicate the constitutionality of AS 11.71.060(a) in Noj^s case, our decision will unfairly preclude the State from attempting to prove that Ravin should be overruled or limited — ie., preclude the State from attempting to prove that there is sufficient justification for a criminal statute prohibiting any and all possession of marijuana, even possession of marijuana by adults in their home for personal use.

But our decision in this case merely implements the supreme court’s constitutional ruling in Ravin. The State remains free in the future to challenge the continuing vitality of Ravin.

For all of these reasons, the State’s petition for rehearing is DENIED.

      . 83 P.3d 538.

      . Ravin, 537 P.2d at 496.

      . Id. at 504.

      . See id., 537 P.2d at 504-511.

      . 543 P.2d 206, 207 (Alaska 1975).

      . 768 P.2d 1123, 1135 (Alaska 1989).

      . 991 P.2d 799 (Alaska App.1999).


text:
    Matthew D. MacDONALD, Appellant, v. STATE of Alaska, Appellee.
    No. A-8357.
    Court of Appeals of Alaska.
    Jan. 16, 2004.

      J. John Franich, Assistant Public Advocate, Fail-banks, and Brant McGee, Public Advocate, Anchorage, for Appellant.
    Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In the summer of 1997, Matthew D. MacDonald was serving a sentence for a felony. On July 7th, the Alaska Parole Board granted MacDonald a temporary release from custody; he was supposed to return two days later. When MacDonald failed to return, the Parole Board issued a warrant for his arrest. Two months later, on September 3rd, the Fairbanks police received a tip that MacDonald could be found at a local apartment, so two officers went to the apartment to arrest him. But when the officers laid hands on MacDonald, he slipped from their grasp and ran away. (MacDonald was apprehended the following day.)

Based on his conduct, MacDonald was ultimately convicted of second-degree escape. We affirmed MacDonald’s conviction in MacDonald v. State, Alaska App. Memorandum Opinion No. 4178, 2000 WL 124803 (February 2, 2000).

The following year, MacDonald filed a petition for post-conviction relief in which he asserted that his trial attorney had been ineffective. Specifically, MacDonald argued that his attorney was incompetent for failing to realize that, even when the facts of MacDonald’s case were construed in the light most favorable to the State, MacDonald’s conduct did not constitute the crime of second-degree escape.

The superior court granted summary judgement to the State, and MacDonald now appeals the dismissal of his petition for post-conviction relief. We agree with the superior court that MacDonald failed to show any reason to believe that his trial attorney was incompetent.

MacDonald was convicted of violating paragraph (a)(1)(B) of the second-degree escape statute, AS 11.56.310. Under this part of the statute, the crime of second-degree escape consists of “removing] oneself from official detention for a felony”. “Official detention”, in turn, is defined as “custody, arrest, surrender in lieu of arrest, or actual or constructive restraint under an order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release”. AS 11.81.900(b)(39).

MacDonald argues that he was not in “official detention” when he ran from the police on September 3, 1997. He notes that, even though the police touched him, they failed to hold him. From this, MacDonald concludes that he was only “constructively” restrained. And, because this “constructive restraint” was pursuant to an order of the Parole Board rather than an order of a court, MacDonald argues that this restraint did not qualify as “official detention”. MacDonald relies on the clause of AS 11.81.900(b)(39) which speaks of “constructive restraint under an order of a court in a criminal or juvenile proceeding”.

But AS 11.81.900(b)(39) defines “official detention” in the disjunctive; that is, “official detention” is defined as “custody” or “arrest” or “surrender in lieu of arrest” or “actual or constructive restraint under an order of a court”. Thus, if the State proved that MacDonald was “arrested” when the officers came to the apartment on September 3,1997, the issue of “constructive restraint” would be moot. And, under the common-law definition of “arrest”, MacDonald was indeed arrested by the officers on September 3, 1997, even though the officers did not succeed in apprehending him.

As this Court noted in Maynard v. State, 652 P.2d 489, 492 n. 6 (Alaska App.1982), the common law deemed a person to be arrested “[i]f an officer having authority to make an arrest actually touches [the] arrestee, for the manifested purpose of apprehending him”. If so, then “the arrest is complete although [the officer] does not succeed in stopping or holding [the arrestee] even for an instant.”

In Maynard, we approved this common-law definition of “arrest”. The jury at MacDonald’s trial was instructed in accordance with this definition, and the jurors (by finding MacDonald guilty of escape) necessarily found that MacDonald had been arrested— ie., the jurors found that the officers had touched MacDonald for the manifested purpose of taking him into custody.

MacDonald argues, however, that this Court repudiated the common-law definition of “arrest” in Hubbard v. State, 800 P.2d 952 (Alaska App.1990), and that it was therefore plain error for the trial judge to instruct the jury on the common-law definition of “arrest” — and incompetence for MacDonald’s trial attorney to fail to object to that jury instruction.

Hubbard involved a defendant who appeared in court for a bail revocation hearing. At the close of the hearing, the court found that Hubbard had violated the conditions of his release, and the court therefore revoked Hubbard’s release. The court directed Hubbard to take a seat in the jury box (so that the judicial services officers could take him to jail along with the other waiting prisoners), but Hubbard instead walked out of the courtroom and did not return. Hubbard was later convicted of escape for this conduct.

This Court reversed Hubbard’s conviction because we held that, under the facts described in the preceding paragraph, Hubbard had not been in “official detention” when he left the courtroom. MacDonald asserts that our decision in Hubbard stands as a rejection of the common-law definition of “arrest” that we adopted in Maynard. But a careful reading of Hubbard shows that we did not reject the common-law definition of “arrest”. Rather, we applied that common-law definition to the facts of Hubbard’s case:

Normally, before a defendant could be convicted of escape, we have required the state to show that the defendant was under arrest. In Maynard v. State, ... we quoted with approval what appears to be the majority rule[:] ... [I]f an officer approaches an offender for the purpose of making an arrest, which he is unable to do because the [offender] eludes him by running away, there has been no ‘escape’ .... It is necessary, however, to bear in mind that [an] ‘arrest’ [is complete if] an officer having authority to make an arrest actually touches [the] arrestee, for the manifested purpose of apprehending him[.] •

Hubbard, 800 P.2d at 954. We further concluded that, for purposes of construing Alaska’s definition of “official detention” (and, thus, defining the crime of escape), the term “custody” should be interpreted as “essentially synonymous” with the term “arrest”. Id. at 954.

After reaffirming these definitions of “arrest” and “custody”, we rejected the State’s argument that Hubbard should be considered to have been in “constructive custody” or “constructive restraint” after the court revoked his bail and ordered him to sit in the jury box. Even though the bail-revoking court had clearly manifested its intention to place Hubbard in custody, we concluded that this was not enough to make Hubbard’s departure from the courtroom an “escape”. Rather, we continued to apply the common-law definitions of arrest and custody — definitions that required an act of touching before a person could be deemed to have been “arrested” or to have been placed in “custody”. Hubbard, 800 P.2d at 955. Applying these common-law definitions, we concluded “that since Hubbard was never placed under arrest before he left the courtroom, he was never in custody” — never in “official detention” — and thus he could not lawfully be convicted of escape for leaving the courtroom. Id.

In other words, MacDonald is wrong when he claims that Hubbard disavowed the common-law definition of “arrest”. Rather, the result in Hubbard stemmed directly from an application of that common-law definition. The Hubbard court concluded that, because the defendant was never touched, the defendant was never in custody.

In response to our decision in Hubbard, the legislature amended the definition of “official detention” in 1991 by adding the clause that speaks of “actual or constructive restraint”. See SLA 1991, ch. 91, § 3. The purpose of this amendment, the legislature declared, was “to reverse the effect of ... Hubbard v. State”. See SLA 1991, ch. 91, § 1 (printed in 1991 “Temporary and Special Acts and Resolves”).

By adding the language about “constructive restraint” to supplement the existing language about “arrest” and “custody”, the legislature expanded the definition of escape so that, in the future, defendants who absconded from a courtroom could be prosecuted for escape even though no one ever touched the defendant for the manifested purpose of apprehending them or placing them in custody. In other words, the issue of “constructive restraint” arises only when the State can not prove that the defendant was “arrested” under the common-law definition of that term approved in Maynard, and reaffirmed and applied in Hubbard.

For these reasons, it was not error for MacDonald’s trial judge to instruct the jury on the elements of “arrest” as that term was defined and applied in Maynard and Hubbard. And it was not a sign of incompetence for MacDonald’s trial attorney to acquiesce in the giving of this instruction. Indeed, such an instruction was necessary, because the State’s theory of the case was that MacDonald was arrested — ¿a, placed in “official detention” — when the officers touched him for the manifested purpose of apprehending him. The jurors needed to be instructed on this point of law.

(And, because the jury found that the officers had indeed touched MacDonald for the purpose of apprehending him, MacDonald’s case does not raise an issue of “constructive restraint”. Instead, MacDonald’s escape conviction rests on a finding that he was arrested.)

The judgement of the superior court — ie., the superior court’s decision to dismiss MacDonald’s petition for post-conviction relief— is AFFIRMED.

      . AS 11.56.310(a).

      . Quoting R. Perkins, Criminal Law (2nd ed.1969), p. 500 (internal citations omitted).

      . Citing Beckman v. State, 689 P.2d 500, 502 n. 3 (Alaska App.1984).