text:
    Michael VAN DEUSEN and Patricia Van Deusen, Appellants/Cross-Appellees, v. Mitch SEAVEY and Janine Seavey, individually and d/b/a Ididaride Sled Dog Tours, and Dan Seavey and Shirley Seavey, Appellees/Cross-Appellants.
    Nos. S-9978, S-10057.
    Supreme Court of Alaska.
    Aug. 23, 2002.

      James N. Reeves and Thomas A. Dosik, Dorsey & Whitney, LLP, Anchorage, for Appellants/Cross-Appellees.
    Sean Halloran, Hartig, Rhodes, Hoge & Lekisch, P.C., Anchorage, for Appel-lees/Cross-Appellants.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Van Deusens sued their neighbors, the Seaveys, to enjoin a private nuisance caused by numerous sled dogs kenneled on the Seav-eys' property. The superior court denied an injunction. Did this denial collaterally estop the Van Deusens' second lawsuit to enjoin the Seaveys? We hold that it does because the Van Deusens have not demonstrated that there was any genuine factual dispute about whether the noise the dogs caused worsened after injunctive relief was denied in the first lawsuit. We therefore affirm the summary judgment against the Van Deusens in the second lawsuit. We nonetheless remand for consideration of the Seaveys' attorney's fees request because we conclude that the parties' dismissal stipulation did not preclude the Seaveys from seeking attorney's fees under Alaska Civil Rule 68.

II FACTS AND PROCEEDINGS

Daniel and Shirley Seavey have occupied their Seward homestead since 1964. Michael and Patricia Van Deusen live on property adjacent to the Seaveys' property. The Van Deusens own "Trails North, Inc.," a seasonal tourist business that operates a fleet of buses, maintains several guest cabins on the Van Deusens' property, and conducts area tours.

Mitch Seavey, the Seaveys' son, is a professional dog musher. Mitch and his wife Janine operate "IdidaRide Sled Dog Tours" on the Seaveys' property from May through September each year. During those months up to seventy-five dogs are kenneled on the Seaveys' property. The Van Deusens allege that the dogs' barking prevents them from sleeping and adversely affects their health.

The Van Deusens and Trails North first sued Daniel, Shirley, Mitch, and Janine Seav-ey for private nuisance in 1995, seeking both injunctive relief and damages. A jury heard the Van Deusens' damages claims and Superior Court Judge Jonathan, H. Link, sitting as trier of fact, simultaneously heard their equitable claim. The jury found a nuisance for 1995 and 1996, awarded the Van Deusens $5,000 in damages, and rejected Trails North's claims. Judge Link rejected the Van Deusens' request for injunctive relief. The superior court rendered final judgment in October 1997. It ruled that no party was a "prevailing party" eligible for attorney's fees or costs.

The Van Deusens appéaled the denial of injunctive relief, and the Seaveys eross-ap-pealed the denial of attorney's fees.

While these appeals were pending, the Van Deusens in 1997 filed a second complaint against the Seaveys. Superior Court Judge Harold M. Brown stayed proceedings in the 1997 lawsuit pending our resolution of the appeals in the 1995 lawsuit.

In February 1998 the Seaveys tendered a Civil Rule 68 offer of judgment to the Van Deusens to settle the 1997 lawsuit. The Van Deusens did not accept the offer. In 1999 we affirmed the superior court's denial of an injunction and its disallowance of attorney's fees in the first lawsuit. The Seaveys then moved for summary judgment in the 1997 lawsuit. They contended that the Van Deu-sens' new damages claim was not coupled with an action to enjoin, as AS 09.45.230 arguably requires. The Van Deusens responded to this motion by amending their second complaint to seek injunctive relief and damages. The Seaveys then moved for partial summary judgment on the theory that res judicata barred the Van Deusens' claim for injunctive relief.

Judge Brown granted the Seaveys' partial summary judgment motion in July 2000. He held that res judicata barred the Van Deu-sens' injunctive relief claim; he allowed their damages claim to proceed. The parties then entered into a written stipulation agreeing to dismiss the damages claim. The superior court issued a final judgment in November 2000. The court awarded the Seaveys Alaska Civil Rule 82 attorney's fees, but denied their request for an award of attorney's fees under Civil Rule 68.

The Van Deusens appeal the dismissal of their injunctive relief claim. The Seaveys cross-appeal the denial of their Rule 68 attorney's fees request.

IIL DISCUSSION

A. The Superior Court Correctly Determined that the First Judgment Barred the Van Deusens' Second Action.

The Van Deusens argue that the conditions the Seaveys created are a temporary, continuing nuisance, giving rise to a series of causes of action. They therefore assert that res judicata does not bar their second lawsuit because it asserts a separate cause of action for a separate claim. They claim that their second action is based on "different cireum-stances," and that they presented evidence that conditions had changed, altering the "balance of equities."

The Seaveys argue in response that the claims the Van Deusens assert in their see-ond lawsuit are the same as the claims litigated in their first lawsuit. The Seaveys also assert that the Van Deusens have not shown that conditions have worsened.

Res judicata bars subsequent actions between the same parties on the same claim or claims that the parties were required to bring in the original action. The closely related but distinguishable doctrine of collateral estoppel bars relitigation of previously decided factual or legal issues. We consider first whether the alleged nuisance is temporary or permanent because this distinction determines which, if either, preclusion doctrine applies here.

1. Because the claim alleges a temporary nuisance, res judicata does not apply.

The Van Deusens argue that the Seaveys' barking dogs create a temporary nuisance. They contend that "[the noise created by the Seaveys' dogs is clearly abata-ble, [and] it is in fact abated every fall when the majority of the dogs are removed from the Seavey property."

We have not previously addressed the distinction between a permanent and a temporary nuisance. Courts considering the issue have labeled a nuisance permanent when there is a high probability that the nuisance will continue and where the nuisance is "relatively enduring and not likely to be abated, either voluntarily or by an order of court." But the nuisance allegedly created by the Seaveys' barking dogs is abatable because the dogs are removed every year from the Seaveys' property. Indeed, Mitch and Janine Seavey remove the dogs annually from the property adjacent to the Van Deusens' property in the normal course of IdidaRide's business operations.

We hold that the nuisance allegedly created by the Seaveys' barking dogs is abatable and that as a matter of law it is temporary. The doctrine of res judicata consequently does not apply here because a temporary nuisance gives rise to a new cause of action with each invasion or injury.

2. Collateral estoppel bars the Van Deusens' second claim for injunctive relief.

We next consider whether collateral estoppel bars the Van Deuseng' second claim for injunctive relief. The superior court denied the injunction the Van Deusens sought in their first lawsuit because the court found and concluded that the Van Deusens "have failed to establish by clear and convincing evidence that the noise made by the IdidaR-ide dogs would, under similar cireumstances, have disturbed a reasonable person and substantially interfered with a reasonable person's use or enjoyment of his property."

Collateral estoppel bars the relit-igation of an issue when:

(1) the party against whom the preclusion is employed was a party to ... the first action; (2) the issue precluded from relit-igation is identical to the issue decided in the first action; (8) the issue was resolved by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.

The present dispute undeniably involves the same parties, and a final judgment was undeniably entered in the first lawsuit. But was the issue the same, and was it necessarily resolved by the first final judgment?

The Van Deusens argue that the underlying legal issue is different because the conditions may worsen and cireumstances have changed since the superior court denied in-Jjunctive relief in the first action. They assert:

More dogs may be added to the lot. Louder dogs may be added to the lot. Environmental conditions may change over the years. Mitigation efforts onee thought to be effective may fail. The parties' ability to obtain legal recourse may change. All these are factual cireumstances which must be weighed by the trial court, not summarily dismissed.

The Seaveys dispute the Van Deusens' claim and argue that conditions have not worsened.

The record does not support the Van Deu-sens' assertions. The Seaveys erected a sixteen-foot barrier in 1997 in an attempt to reduce the noise entering the Van Deusensg' property. The Van Deusens claim that this mitigation effort by the Seaveys is incffec-tive. But assuming it is ineffective, the Van Deusens would still have to show that conditions have worsened since entry of the judgment in the first lawsuit; otherwise the legal issue in this case would be no different, and the Van Deusens' claim would be barred by collateral estoppel. The Van Deusens made no showing of worsened conditions in opposing the Seaveys' motion for summary judgment. They have not demonstrated that a reasonable fact finder, taking all permissible factual inferences in favor of the Van Deusens, could find that conditions worsened since entry of the 1997 final judgment. There is no indication in their joint affidavit supporting their opposition to the Seaveys' motion for summary judgment that conditions worsened since their first suit was re-soived. The affidavit does not assert or permissibly imply that the noise has worsened, only that the Van Deusens' ability to bear the noise has lessened and that mitigation efforts have been unsuccessful. In comparison, the Seaveys point to passages in the record in which the Van Deusens testified that there has been some noise reduction due to the erection of the wall since the first trial and admitted to the superior court that "the conditions that created the nuisance have not changed."

The 1997 final judgment denying injunctive relief to the Van Deusens in their first lawsuit was expressly based on Judge Link's findings and conclusions that the Van Deu-sens failed to prove either a nuisance or their entitlement to an injunction. Thus, absent a demonstration that conditions had changed, the critical issue in the second lawsuit-whether there is a nuisance entitling the Van Deusens to an injunection-is identical to the issue decided against them in the first lawsuit. It also means that the issue was resolved by a final judgment and that resolution of the issue was essential to the final judgment.

Collateral estoppel therefore bars the Van Deusens' second attempt to enjoin the Seav-eys. Because there were no genuine issues of material fact about whether cireumstances had changed, the superior court did not err in granting summary judgment to the Seav-eys.

B. The Van Deusens' Remaining Arguments Do Not Require Reversal.

The Van Deusens argue that oral comments made by Judge Link in April 1997 indicate that the superior court did not intend the denial of injunctive relief to preclude the Van Deusens from bringing a future suit seeking an injunction. The Seaveys respond that the superior court's statements were "nothing more than ... off-hand remarks."

Judge Link orally stated in April 1997: "If you were to think that this decision ... prevents this thing from being relitigated, you'd have the wrong thought." But Judge Link's September 1997 findings of fact and conclusions of law and his October 1997 final judgment are controlling. The September 1997 written findings and conclusions denied the Van Deusens' request for injunctive relief. As we noted in Part IILA.2, the Van Deusens offered no evidence permitting them to avoid the resulting bar against relitigating the nuisance issue and the request for a injunction. The superior court's April 1997 oral comments do not alter this conclusion.

The Van Deusens also argue that they are left with no legal remedy if precelu-sive effect is given to the first action, because AS 09.45.230 requires that damage suits in private nuisance actions be accompanied by a request for an injunction. But AS 09.45.2830 does not preclude the Van Deusens from requesting damages. It only requires that they include with their request a claim for injunctive relief The statute does not require that the action for injunctive relief be successful. This may seem a cireuitous route for recovering damages for a temporary nuisance in a civil action, but it does not leave the Van Deusens without "an adequate remedy at law." Moreover, evidence of a genuine change in cireumstances would overcome the bar against relitigation because the underlying dispute would no longer be "identical to the issue decided in the first action.

C. The Seaveys' Civil Rule 68 Attorney's Fees Request Must Be Considered on Remand.

The superior court awarded the Seaveys attorney's fees of $8,499.40 under Civil Rule 82(b)(2), but the Seaveys argue in their cross-appeal that the court erred by failing to grant their request for attorney's fees under Civil Rule 68 (because they made a successful offer of judgment), or for enhanced attorney's fees under Civil Rule 82(b)(8).

After the superior court granted partial summary judgment against the Van Deusens on their injunctive relief claim, the parties entered into a stipulation to dismiss the Van Deusens' remaining claims. The stipulation stated that "the Seaveys should timely file any motion they may bring for an award of costs and fees in accordance with the law." The superior court read the stipulation to allow for an award of attorney's fees. But it noted that the stipulation did not mention Rules 37 or 68, that Rule 82 is the "most common mechanism" for awarding fees, and that the agreed-upon final judgment form characterized the Seaveys as "the prevailing parties" (a prerequisite only for awards under Rule 82). It therefore read Sanders v. Barth to deny it authority to consider the Seaveys' request for fees under Rules 37 or 68. We held in Sanders that "[aln agreement's silence as to fees ... may be seen as a meaningful part of the parties' overall bargain which we should not disturb."

The Seaveys argue that Sanders does not apply because the Seaveys and Van Deusens never entered into a settlement agreement. They contend instead that they "won this case" on summary judgment, that they then stipulated to dismissal of the remaining claims, and that the final judgment was based on their summary judgment. They assert alternatively that the stipulation did not preclude them from seeking a fee award under any applicable procedural rule, including Rule 68. The Van Deusens respond that Sanders applies because: (1) the parties settled the claims covered by the Rule 68 offer of judgment; (2) Rule 68 applies to claims, not cases; (8) the stipulation is silent about Rule 68; and (4) the final judgment form refers to "prevailing parties," indicating that the parties only contemplated an award under Rule 82, not Rule 68.

The superior court appropriately looked to Sanders in deciding whether the stipulation-which agreed to dismiss the Van Deu-sens' remaining claims-foreclosed or limited the Seaveys' potential claims for attorney's fees. But in Sanders, the parties' silence on the topic of fees precluded any fees claim. That is not the situation here. The parties agreed in the stipulation that "[flinal judgment should be entered in favor of the Seav-eys, and the Seaveys should timely file any motion they may bring for an award of costs and fees in accordance with law."

Applying our independent judgment in interpreting the stipulation and the agreement it contains, we conclude that it did not expressly or impliedly limit the type of claim the Seaveys might make for an award of attorney's fees. The stipulation does not mention any procedural rule, including Rule 82. The reference in the proposed final Judgment to the Seaveys as "the prevailing parties" is not determinative, and would not have prevented the court from awarding enhanced attorney's fees under Rule 82(b)(8) had it chosen to do so in its discretion.

Further, assuming that no waiver occurred, the court would have been required to award fees under Rule 68 because the rule's requirements are not discretionary. Whether the rule applies in a given case is a matter of law, even though we review the amount of a Rule 68 award for abuse of discretion. We therefore do not read the stipulation to have foreclosed the Seaveys from attempting to demonstrate that they made a successful offer of judgment entitling them to fees under Rule 68.

The Seaveys have demonstrated potential prejudice. Their February 1998 Rule 68 offer of judgment "allow[ed] judgment to be entered against [the Seaveys] in complete satisfaction of all claims of any type what-so-ever, in the amount of $20,000." The Van Deusens did not accept the offer. The summary judgment rejected the Van Deuseng' claim for injunctive relief and the final judgment dismissed all claims; this ended the litigation without giving the Van Deu-sens any relief or damages. It therefore appears that the final judgment was at least five percent less favorable to the Van Deu-sens than the Seaveys' Rule 68 offer. Because the stipulation clearly contemplated an award of attorney's fees, did not specify that fees could only be recovered under Rule 82, and did not preclude recovery under Rule 68, we hold that it was error not to consider the «Seaveys' Rule 68 fees request. We remand for consideration of that claim.

IV. CONCLUSION

Because the Van Deusens have not demonstrated that there is a genuine factual dispute about whether the conditions changed since judgment in their first lawsuit, collateral estoppel bars their second lawsuit. We therefore AFFIRM the superior court's grant of summary judgment to the Seaveys. We REMAND for consideration of the Seav-eys' application for Rule 68 attorney's fees.

      . Trails North, Inc. v. Seavey, Mem. Op. & J. No. 944, at 2 (Alaska, December 1, 1999).

      . Id.

      . Id.

      . Id. at 3.

      . Id. at 19.

      . The Van Deusens assert on appeal that they voluntarily dismissed their damages claim "to more rapidly appeal the court's ruling that their claim for an injunction was barred by res judica-ta."

      . Alaska Contracting & Consulting, Inc. v. Alaska Dep't of Labor, 8 P.3d 340, 344 (Alaska 2000) (citation omitted).

      . Id.

      . We will affirm the superior court's grant of summary judgment to the Seaveys if there are no genuine issues of material fact and if the Seaveys are entitled to judgment as a matter of law. Holland v. Union Oil Co. of California, Inc., 993 P.2d 1026, 1029 (Alaska 1999). The Van Deu-sens, as the summary judgment opponents, are entitled to have the record reviewed in the light most favorable to them and to have all reasonable factual inferences drawn in their favor. Id.

      . Kentucky-Ohto Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1, 5 (1936). See also 9 RicHarp Powsit & MicHart Arran Wore, Powsit on Rear Property § 64.04[2], at 64-22 to 64-23 (2001) (citations omitted). The noise created by a gas company's pumping activities has been held to be a permanent nuisance to an adjacent homeowner. Kentucky Ohio Gas, 95 SMW.2d at 4-6. Nuisances are more likely to be labeled permanent if "the invasion is the kind of thing an equity court would refuse to abate by injunction because of its value to the community." Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117, 1123 (D.C.Cir.1988) (citing D. Dopps, Remepiss § 5.4, at 338 (1973); see also Kentucky-Ohio Gas, 95 S.W.2d at 5 (holding gas company's pumping activities contribute to the local economy and provide utility services to local residents). But even nuisances created by activities providing substantial public benefits, such as operating a railway system, may be abatable if changes in operating procedures alleviate the nuisance without terminating service. Beatty, 860 F.2d at 1123-24. Because we hold that the nuisance complained of is temporary, we do not reach this factual inquiry in this case.

      . Citing AS 09.10.070, the Seaveys also argue that the Van Deusens' action is barred by the two-year statute of limitations. They argue that the nuisance complained of was created in 1993 and that any claim after 1995 is barred. The Seaveys' argument is based on the theory of permanent nuisance. Because we hold that the claimed nuisance is temporary and not permanent, claims after 1995 are not necessarily barred by AS 09.10.070.

      . Beatty, 860 F.2d at 1122.

      . Alaska Contracting, 8 P.3d at 344-45 (citations omitted).

      . Andrews v. Wade & De Young, Inc., 875 P.2d 89, 92 & n. 9 (Alaska 1994).

      . See D.J. v. P.C., 36 P.3d 663, 669 (Alaska 2001) (stating that non-movant in summary judgment motion is "required, in order to prevent entry of summary judgment, to set forth specific facts showing that [non-movant] could produce admissible evidence reasonably tending to dispute or contradict the movant's evidence, and thus demonstrate that a material issue of fact exists") (internal quotations and citations omitted).

      . Our affirmance on this ground makes it unnecessary for us to reach the Seaveys' alternative arguments for affirming.

      . AS 09.45.230 states in part:
      (a) A person may bring a civil action to enjoin or abate a private nuisance. Damages may be awarded in the action.

      (e) Notwithstanding other provisions of the law, ... a person may not bring a civil action to enjoin or abate a private nuisance or to recover damages for a private nuisance unless the action is authorized by this section.

      . Alaska Contracting, 8 P.3d at 344.

      . The Seaveys also claim that the court should have granted their request for Civil Rule 37 fees, but they have not demonstrated on appeal any facts potentially justifying a Rule 37 award as a discovery sanction against the Van Deusens. They have therefore not demonstrated that they were prejudiced by any error in declining to consider their Rule 37 fees request.

      . 12 P.3d 766, 767 (Alaska 2000) (holding absence of attorney's fees provision in settlement agreement barred party from receiving fees). , But see DeSalvo v. Bryant, 42 P.3d 525, 530 n. 21 (Alaska 2002) (declining to apply Sanders rule where party bypassed opposing party's counsel in reaching settlement).

      . The superior court stated:
      Considering the lack of mention of Rules 68 or 37 in the stipulation, the role of Rule 82 as the most common mechanism for awarding fees, and the parties' agreement that the Seaveys are the prevailing party ..., the court interprets the parties' stipulation as an agreement to an award of Rule 82 fees and a settlement and waiver of all other theories upon which fees could be awarded.

      . Sanders, 12 P.3d at 769-70 (citation omitted).

      . We review the superior court's award of attorney's fees for an abuse of discretion. Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 376 (Alaska 1989). We apply our independent judgment in reviewing the superior court's interpretation of the stipulation and the final judgment to determine the parties' intentions. Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989) (Interpretation of a contract is a question of law, for which the reviewing court uses independent judgment." (citation omitted)).

      . Civil Rule 68, as it read at times relevant to this appeal, stated in part:
      ... (b) If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer, ... the offeree, whether the party making the claim or defending against the claim, shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney fees incurred by the offeror from the date the offer was made. ...
      Alaska R. Civ. P..68(b). The Van Deusens' Anchorage counsel mailed their complaint to Kenai Superior Court on about August 13, 1997. The quoted version of Rule 68(b) applies to cases filed after August 7, 1997. Alaska Supreme Court Order No. 1281 T17 (August 7, 1997).

      . Id.

      . We are unpersuaded by the Seaveys' additional claim that it was error not to consider their request for enhanced attorney's fees under Rule 82(b)(3). The superior court treated the stipulation as permitting a Rule 82 award; it treated the stipulation as barring a Rule 68 fees request, but there is no indication it thought the stipulation precluded consideration of a request seeking {ees under Rule 82(b)(3). The reasons it gave for its ruling suggest that it did not consider the stipulation to foreclose an enhanced fee award. A trial court has discretion to apply the presumptive standard of Rule 82(b)(2); it does not abuse its discretion if it awards fees under subpart (b)(2) without giving reasons for not awarding enhanced fees under subpart (b)(3). Moody Herrera v. State, Dep't of Natural Res., 967 P.2d 79, 90 (Alaska 1998).


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    Mary C. WHAH, Appellant, v. Andrew WHAH, Appellee.
    No. S-10171.
    Supreme Court of Alaska.
    Aug. 23, 2002.

      Jody A. Reausaw, Law Office of Jody A. Reausaw, Anchorage, for Appellant.
    Ryan R. Roley, Anchorage, for Appellee.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Andrew Whah, whose child was then receiving Children's Insurance Benefit (CIB) payments, agreed to entry of an October 1994 order requiring him to pay monthly child support of $896. In 1998 he sought a child support credit for the CIB payments. Mary Whah argued in opposition that Andrew had waived any credit in his August 1994 handwritten note stating that he knew he might be entitled to a credit for the CIB payments, but also stating that "I agree to pay the whole amount." The superior court, citing Miller v. Miller, ruled that Andrew was entitled to the credit. We reverse and remand because we cannot tell whether the court considered Mary's waiver argument, or rejected it on its merits despite unresolved potentially material factual disputes.

II. FACTS AND PROCEEDINGS

Andrew and Mary Whah married in 1965. They filed a petition to dissolve their marriage in September 1994. They had one minor child, Aniela, born in 1979. Their dissolution petition stated that Andrew's "net monthly child support payment" obligation, calculated under Alaska Civil Rule 90.3, was $896. Their petition did not identify any child support credits or cireumstances justifying a lower payment. At the October 13, 1994 dissolution hearing, the parties confirmed that child support would be $896; Andrew represented himself at the hearing and counsel represented Mary. The superior court entered an order on October 17, 1994 requiring Andrew to pay monthly child support of $896.

Although the parties did not mention it in their petition or during the hearing, Andrew had been receiving social security benefits for a long-term disability; as a result, Aniela had been receiving Children's Insurance Benefits (CIB).

Andrew paid child support of $896 per month as the dissolution petition contemplated and the 1994 order required, but in January 1998 he filed a motion to modify child support. Among other things, his motion sought credit for the social security benefits paid on behalf of Aniela before she turned eighteen in September 1997. He attached to his affidavit printouts to support his averment that the social security payments exceeded $18,000.

Mary opposed his motion, and argued that Andrew was really seeking an offset,. She stated in her accompanying affidavit that she was attaching "a handwritten note [Andrew] wrote to my lawyer, Brent Cole, which shows he understood his right to an offset and his waiver of that right at that time." The copy of the handwritten note bears an August 30, 1994 transmission date.

According to the record, Andrew signed the dissolution petition containing the child support calculation on August 26, 1994; Mary signed it on September 2. The note Mary attached to her affidavit states, among other things:

Accord to Social Security Agent Nettie Snorton the amount Sherry & Aniela receive from Social Security is credited to child support required by court. However I agree to pay the whole amount.

In reply, Andrew requested a hearing to resolve fact disputes arising from Mary's opposition to his request for a credit, The superior court held a hearing in December 1998 at which Andrew and Mary testified but at which neither discussed the issue of waiver or the handwritten note. Superior Court Judge Dan A. Hensley entered a January 1999 order that required the Alaska Child Support Enforcement Division (CSED) to calculate Andrew's child support arrearages. CSED then conducted an audit; its September 1999 notice stated that CSED had reduced Andrew's arrearages by $11,188.24 for the period October 31, 1994 through September 1999, and that it was crediting his account with $15,557 in CIB payments received by Aniela for the November 1994 September 1997 period.

Mary then moved for an order finding that Andrew had waived any possible CIB credit by executing the handwritten note and sending it to Mary's lawyer before Mary and Andrew entered into and filed the September 1994 dissolution petition agreeing to monthly child support of $896. She argued that CSED's audit failed to acknowledge Andrew's waiver, and argued that this court's decisions permitting a credit for CIB payments did not apply because Andrew had "knowingly waived" a credit. She supported her motion with her February 1998 affidavit that discussed and attached Andrew's note to Mary's attorney. Andrew opposed this motion, arguing that the dissolution petition contained no waiver and that any offer to waive during negotiations was of no significance because it was not incorporated into the petition.

By order of March 2001, Superior Court Judge Eric T. Sanders denied Mary's motion after having "reviewed the pleadings." The order referred to paragraph seven of Mary's March 18, 1998 affidavit in which she "assumed" that the CIB payments would be offset against Andrew's child support obligation. Mary moved for reconsideration, arguing that she was referring in paragraph seven to CIB payments made before the dissolution. On reconsideration, the court "reviewed the pleadings [and] memoranda" and stated that it was "not convinced that Mary Whah's motion is meritorious in view of the dissolution agreement the parties signed and the decision in Miller v. Miller, 890 P.2d 574 (AK 95)."

Mary appeals.

III DISCUSSION

A. Remand Is Necessary To Decide Whether Andrew Waived any Credit.

Mary argues that the dissolution petition's discussion of the amount of child support takes Andrew's waiver of a CIB credit into consideration. She asserts that there was no reason for the dissolution petition to discuss the waiver, because the petition predated Miller v. Miller When she and Andrew prepared the petition, they knew that the CIB payments could be credited and, Mary argues, Andrew knew that he was voluntarily waiving that credit. But the parties did not know the extent to which this court's later decisions would enforce that entitlement; she asserts that she and Andrew therefore thought that their verbal understanding (as expressed in Andrew's note) would be sufficient. She also argues that admissible extrinsic evidence establishes the parties' intent to waive the credit. She contends that Andrew expressed this intent in a writing he has not refuted, ie., his handwritten note, and that he made the full payments of $896 for more than three years after their dissolution petition was filed. She points out that the petition is silent as to both the waiver and the possible credit. She also notes that their petition did not include the CIB benefits in calculating Andrew's income.

In Miller, we reasoned that social security benefits are earnings derived from the parent's past social security contributions. We held that such benefits should be counted as the contributing parent's income for purposes of calculating income under Alaska Civil Rule 90.3 and that the parent is entitled to child support credit for those payments the child receives. In Pacana v. State, De partment of Revenue, Child Support Enforcement Division, we extended the holding in Miller and read Rule 90.3(h)(2) "to allow an automatic eredit against child support ar-rearage for CIB.... Because the CIB payments are regular monthly payments and the custodial parent is aware of them, they can be credited against a child support obligation." In Hermosillo v. Hermosillo, we held that the lower court erred by not crediting CIB payments when it calculated the child support arrearages.

Mary asserts that Miller and its progeny do not apply here because they did not involve obligors who, after learning of the right to a credit for CIB payments, agreed to forgo the credit. She argues that Andrew is bound by his agreement to pay monthly child support of $896 regardless of the CIB payments.

Andrew argues that the dissolution petition incorporated no waiver because it did not explicitly or impliedly address waiver and neither party mentioned a waiver at the dissolution hearing. He asserts that the parties intended the petition to be their entire agreement. Andrew argues that "it is appropriate to consider all of the available evidence surrounding the alleged waiver." He does not dispute the existence of his handwritten note. He contends that we should interpret the petition's silence on waiver to mean that the parties never agreed to any waiver, given that AS 25.24.210(e) requires a dissolution petition to "state in detail the terms of the agreement between the spouses." Andrew asserts that no evidence suggests that the superior court did not consider the note when it stated that it was "not convinced Mary's motion is meritorious." Andrew argues that because the lower court did not find that Andrew waived the CIB credit, Miller and our later CIB credit cases mandate that he receive the credit.

We review a superior court's factual determinations for clear error, and its legal determinations regarding dissolution agreements and other contracts de novo. But we cannot tell here whether the court was resolving a factual dispute or whether it was ruling solely as a matter of law. We exercise our independent judgment in determining whether there were genuine, material factual disputes that could not be resolved without an evidentiary hearing.

It is not clear from the orders or the procedural context why the superior court denied Mary's motion seeking an order declaring that Andrew had waived a credit for the CIB payments and her subsequent motion for reconsideration. There are several possibilities.

The superior court may have ruled without reaching the question whether Andrew waived a credit. Given its reliance on paragraph seven of Mary's March 18, 1998 affidavit, it may have reasoned that Mary had already conceded that a credit was required, notwithstanding a waiver. It may have reasoned that the alleged waiver predating Miller and our subsequent CIB decisions either would have been invalid or could not have heen knowing. Or it may simply have interpreted the petition and order not to preclude Andrew's claim for the credit CSED ultimately granted him.

Alternatively, the court may have reached the waiver issue, but resolved it against Mary. Thus, it may have accepted Andrew's arguments that the parties' September 1994 petition contained no waiver, and that the August note was at most a waiver offer that was not incorporated into the September petition. Or it may have reasoned that Mary failed to establish that there was a genuine factual dispute, perhaps because it deemed Mary's evidence of waiver to be inadmissible. Or it may have concluded, based on the evidence, that Andrew did not waive any right to a credit.

If any one of these possibilities justified denial of Mary's motion without an evi-dentiary hearing, we would be reluctant to reverse. But because the purely legal issues do not compel affirmance and because there appear to be genuine, material factual disputes that could not be resolved against Mary as a matter of law, we reverse.

It is undisputed that Andrew would have been entitled to credit for the CIB payments, absent a waiver. Mary submitted Andrew's note and asserted that it "shows [Andrew] understood his right to an offset and his waiver of that right at that time." In response, Andrew offered no evidence other than the parties' dissolution petition. On appeal, Andrew does not direct us to any other evidence relevant to the dispute. He does not dispute the existence of the written note and does not affirmatively deny that there was a waiver. Finally, he does not argue that no waiver could have been valid or that no pre-Miller waiver could have been knowing.

We assume for purposes of this appeal that Andrew wrote and sent the note, that he could have waived a credit for CIB payments, and that he could have committed to pay a specified amount of child support notwithstanding the possibility he might have been entitled to a credit. And given the evidence that Andrew obtained information from the social security agent, we also assume that a court could find that a waiver was knowing and therefore valid. Miller and our subsequent CIB cases did not consider whether the right to the credit had been waived and they did not involve obligors who had received advice from a social security administrator, permitting an inference that the waiver was knowing.

Given these assumptions, we must remand for consideration of Mary's waiver claim. We first conclude that she raised a genuine factual dispute about whether Andrew knowingly waived receiving a child support credit for the CIB payments. This dispute could not be resolved against Mary as a matter of law.

We also conclude that the dispute was material, because extrinsic evidence of waiver and the parties' contracting intentions was relevant to interpreting the child support agreement in which Andrew agreed to pay monthly support of $896 and which identified no grounds for a credit. We discern no reason why the superiot court was precluded from considering the handwritten note. Because the note was not inconsistent with the integrated petition, considering it would not have violated contract interpretation or parol evidence principles.

The duration and seope of Andrew's alleged waiver may be subject to dispute on remand. Mary requested a "finding that Andrew waived any credit to his child support payments from social security payments his daughter received from November 1994 to September 1997." Mary opposed any credit for the CIB payments from November 1994 until September 1997 (when Aniela turned eighteen and the payments ended). She arguably also opposed any attempt by Andrew to offset the CIB payments against his future support payments he had conditionally agreed to pay until Aniela turned twenty-two. Even if Andrew was not entitled to a credit against support he owed before he moved to modify his child support obligation in January 1998, it is not clear that his waiver was irrevocable or would preclude an offset against payments he would owe in the future. The handwritten note expresses a willingness to pay the specified amount without receiving a credit. Although it may imply an irrevocable waiver, it does not express an irrevocable waiver, and it does not expressly relinquish any future claim for a credit or an offset.

It is therefore necessary on remand to consider whether the note was evidence of voluntary waiver. If it was, what was the scope and duration of that waiver? Did it forever preclude Andrew from seeking CIB credit? Or did it simply reflect his revocable willingness to forgo a credit, without precluding him from moving for a modification in the future? If that is the case, the court may also have to consider whether there has been a change in circumstances sufficient to justify a reduction in Andrew's payments, and whether our issuance of Miller was a change of the law which would amount to a change in circumstances.

Finally, we note that a finding that a waiver was limited-i.e., that it was revocable and did not preclude an offset against post-January 1998 support payments-could give rise to a claim that Mary reasonably relied on the waiver to her detriment, estopping Andrew from seeking an offset against future payments.

IV. CONCLUSION

For these reasons, we REVERSE the denial of Mary's motion requesting an order finding that Andrew waived any claim for a credit or offset for the CIB payments, and REMAND for further proceedings.

MATTHEWS, Justice, not participating.

      . 890 P.2d 574 (Alaska 1995).

      . 890 P.2d 574 (Alaska 1995).

      . Id. at 578. p

      . Id. at 575, 578.

      . 941 P.2d 1263, 1266 (Alaska 1997).

      . 962 P.2d 891, 894 (Alaska 1998).

      . Knutson v. Knutson, 973 P.2d 596, 599 (Alaska 1999).

      . Id. (holding that interpretation of parties' disso-Tution agreement is question of law which appellate court reviews exercising its independent judgment).

      . Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001) (citing Acevedo v. Burley, 944 P.2d 473, 476 n. 2 (Alaska 1997)).

      . See Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992) (holding hearing not required if no relevant fact disputes).

      . See supra text accompanying notes 4-7 discussing Miller and its progeny.

      . See Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 583-84 (Alaska 1989) (explaining parol evidence rule); Jackson v. Nangle, 677 P.2d 242, 247-48 (Alaska 1984) (examining extrinsic evidence to resolve question of contracting intent where contract silent as to disputed issue).

      . See Bunn v. House, 934 P.2d 753, 758 (Alaska 1997) (explaining that both factual changes as well as changes in law may constitute material changes of circumstances justifying modification of child support); Charlesworth v. State, Child Support Enforcement Div., 779 P.2d 792, 793 (Alaska 1989) (concluding that adoption of Civil Rule 90.3 constitutes material change of circumstances).

      . See Cizek v. Concerned Citizens of Eagle River Valley, Inc., 41 P.3d 140, 145 n. 14 (Alaska 2002) (''The defense of estoppel has four elements: (1) A party substantially changes position; (2) in reliance on a promise made by another; (3) the reliance was either actually foreseen or reasonably foreseeable; and (4) enforcement of the promise is necessary in the interests of justice." (citation omitted)).


author: COATS, Chief Judge.

text:
    Clynton D. BUTTS, Appellant, v. STATE of Alaska, Appellee.
    No. A-7678.
    Court of Appeals of Alaska.
    Aug. 23, 2002.

      Susan M. Carney, Assistant Public Advocate, Fairbanks, and Brant McGee, Public Advocate, Anchorage, for Appellant.
    Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Clynton D. Butts of robbery in the second degree for forcibly taking a woman's purse from her. He appeals his conviction, arguing that the trial court erred in refusing to dismiss the indictment against him and that his sentence is excessive. We affirm.

Butts was indicted on January 20, 1999, for robbery in the second degree. The grand jury and trial testimony described the basis of the charge as follows: Butts accosted Cheryl Joens in the parking lot of the Bentley Mall Safeway in Fairbanks at about 10:30 pm. on January 14, 1999. Joens heard footsteps, saw Butts running toward her, and felt him grab her purse. She screamed and struggled with Butts over her purse. She ended up on the ground, still struggling with Butts over her purse. After it was clear Butts was not going to give up the purse, Joens allowed Butts to pull the purse from her grasp in fear he would attack her with a weapon. Butts took her purse and ran away.

Joseph Fields was in the parking lot during the incident. He heard Joens scream, turned, saw Butts tackle her, and ran to help Joens. He yelled at Butts to stop. When Butts took the purse and ran, Fields chased him-first on foot, then in his car.

Mark Herz, also in the parking lot during the incident, saw the others and chased Butts in his vehicle. He and Fields followed Butts, who dropped the purse while running through a number of neighboring parking lots to the Back Door Lounge.

Butts entered the Back Door Lounge and, after meeting with another man, ran through the parking lot to nearby woods. The Fairbanks Police Department and Alaska State Troopers responded. Trooper Scott Johnson used a police dog to track Butts to a snow berm where he was hiding. Butts surrendered, stating that he had taken the purse because he owed $200 on a drug debt and that the man he owed the debt had a gun. Butts later told Fairbanks Police Detective Aaron Ring that he had taken the purse because he needed drug money.

Butts's first trial ended in a hung jury. But in a second trial, conducted by Superior Court Judge pro tem Raymond M. Funk, a jury convicted Butts of robbery in the second degree.

Robbery in the second degree is a class B felony that carries a four-year presumptive term of imprisonment for a second felony offender and a six-year presumptive term of imprisonment for a third felony offender. Judge Funk found that Butts had two prior felony convictions from Oklahoma that qualified as prior felony offenses for purposes of presumptive sentencing. He therefore concluded that Butts was a third felony offender subject to a six-year presumptive term. Judge Funk found that two aggravators applied to Butts's sentence: that Butts had a prior criminal history that included "conduct involving aggravated or repeated instances of assaultive behavior" and that Butts was "on release under AS 12.30.020 or 12.30.040 for another felony charge or conviction or misdemeanor charge or conviction having assault as a necessary element" at the time he committed this offense. Judge Funk sentenced Butts to an aggravated presumptive term of eight years with two years suspended and placed him on probation for a period of five years following his release from confinement.

Butts's challenge to his indictment: Did he commit a taking by "force"?

After Butts was indicted for robbery, he asked the superior court to dismiss the indictment on the ground that the prosecutor failed to instruct the grand jurors on the statutory definition of "force." Alaska Statute 11.81.900(b)(26) defines "force" as

any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement{[.]

Butts asserted that the grand jurors needed special instruction on this issue because the statutory definition of "force" differs significantly from the normal, everyday definition and because, given the facts of his case, the grand jurors reasonably might have concluded that Butts did not use "force" when he took the purse from Joens.

As explained above, the state presented evidence that Butts ran up to Joens and took hold of her purse. When Joens refused to let go of her property, Butts engaged in a tugging match with her, attempting to wrest the purse from her grasp. During this struggle, Joens fell to the ground. Joens believed that Butts would injure her if she did not relinquish the purse, so she let go.

Butts concedes that, under the everyday meaning of "force," he took Joens's purse by force. Butts argues, however, that if the grand jurors had understood that Alaska law defines "force" in a specialized, limited way, they might have refused to indict him-because, under the above facts, one reasonably could conclude that Butts did not effect any bodily impact on Joens, nor did he threaten her with bodily impact.

Butts's argument runs contrary to the generally accepted law on this issue. The dividing line between "purse snatching" (i.e., theft from the person) and robbery is described in Substantive Criminal Law by LaFave and Scott:

The line between robbery and larceny from the person ... is not always easy to draw. The "snatching" cases, for instance, have given rise to some dispute. The great weight of authority, however, supports the view that there is not sufficient force to constitute robbery [if] ... the thief snatches property from the owner's grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of an impending snatching, resists it, or when[ 1 the thief's first attempt ... to separate the owner from his property [is ineffective and] a struggle ... is necessary before the thief can get possession [of the property], there is enough force to make the taking robbery .

Under this general rule, the sudden snatching of a purse, briefcase, or satchel will be only a theft. But if "a struggle ensues, where the victim is knocked down, or where the victim is put in fear," the crime will be robbery. It is the act of "wresting" or "wrenching" (as opposed to merely "grabbing" or "snatching") that makes the offense a robbery. "[Elven {[a] slight tug on the arm by the purse thief who must use foree to wrench the purse from the arm of the victim" is enough to convert the theft to a robbery.

Thus, in State v. Williams, the Connecticut Supreme Court affirmed a robbery conviction arising from a purse-snatching in which the victim suffered bruises on her shoulder. The court concluded that, based on these bruises, the jury reasonably could have inferred that the victim offered resistance to the force exerted by the thief in attempting to wrench the shoulder strap from her-a resistance that converted the purse-snatching into a robbery. Other courts have ruled that the resistance needed to convert a theft to robbery can arise simply from the fact that the victim's property was "so attached to the victim's person or clothing as to create resistance to the taking.

However, even though these cases reject Butts's argument that his conduct did not amount to robbery, they are not conclusive authority on this question. Many of these states have definitions of robbery and force that differ from Alaska's. In particular, very few jurisdictions have definitions of "force" that restrict this term to "bodily impact," "restraint," and "confinement."

Under Alaska law, the ultimate issue is whether Butts effected a "bodily impact" on Joens when he grabbed her purse and tried to wrest it from her while she held on and resisted his efforts. We therefore must decide whether the phrase "bodily impact" includes indirect contacts such as this-instances where the defendant does not actually touch the victim but, instead, exerts impact on property that is attached to the victim or that the vietim is holding onto. For the reasons stated below, we conclude that "bodily impact" does include such indirect contacts.

We reach this conclusion, in part, by analogy to the civil tort of battery, which consists of the intentional unlawful touching of another. This tort can be committed through an indirect touching of the vietim-ie., by touching the victim's clothing or articles of property connected to the victim's body. This concept is explained in Restatement (Second) of Torts:

Since the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his [or her] person and not in any physical harm done to his [or her] body, it is not necessary that the plaintiff's actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability [are] actionable as an offensive contact with [the victim's] person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person.

Thus, in Fisher v. Carrousel Motor Hotel, Inc., the defendant snatched a patron's dinner plate from his hands without touching the patron. The Texas Supreme Court held that the intentional grabbing of the patron's plate constituted battery. Also, in Morgan v. Loyacomo, the Mississippi Supreme Court held that the defendant's act of forcibly seizing a package from under a customer's arm constituted battery.

This same principle applies in prosecutions for eriminal battery. Direct physical contact between the defendant and the victim is not required; the erime can be committed by the indirect application of unlawful force.

For example, in State v. Gammil, the New Mexico Court of Appeals held that the defendant committed the crime of aggravated battery in cireumstances much like Butts's case: the defendant grabbed the victim's purse and then, attempting to wrest control of the purse, spun around-with the result that the victim was thrown to the ground. In State v. Ortega, the court held that a defendant could be convicted of battery upon a police officer even if the jury believed the defendant's testimony that he merely grabbed the officer's flashlight and knocked it from the officer's hand. And in Nash v. State, the Florida Court of Appeals held that a criminal battery is committed not only by the intentional unlawful touching of the victim's person but also the touching of "an object that has such an intimate connection to the person as to be regarded as a part or extension of the person, such as clothing or an object held by the person." The court concluded that the defendant was properly convicted of battery when he "intentionally touched the victim's closely held purse against her will."

Neither the legislative history of our robbery statute nor the legislative history of our statutory definition of "force" gives any indication that our legislature intended to depart from these established rules of erimi-nal law. We therefore construe the term "bodily impact" in AS 11.81.900(b)(26) to include indirect bodily impacts such as the one presented in this case. Butts effected a "bodily impact" on Joens when he attempted to wrest Joens's purse from her grasp because she actively resisted his effort. He therefore took the purse by "force" as that term is defined in AS 11.81.900(b)(26).

Having construed AS 11.81.900(b)(26) in this way, we conclude that Butts suffered no prejudice from the failure of the prosecutor to give the grand jury a special instruction on the statutory definition of "force." The evidence clearly established that Butts used "force" as we now have defined it. Indeed, the grand jury might have been led astray by the statutory definition of "force" unless it received a supplemental instruction that "bodily impact" includes the type of indirect bodily impact presented here.

Prior felony convictions

Butts contends that Judge Funk erred in finding that his prior Oklahoma felony con-viections qualified as prior felony convictions for purposes of presumptive sentencing. A prior conviction from another jurisdiction qualifies as a prior felony conviction for purposes of presumptive sentencing under AS 12.55.145(a)(1)(B) if it has "elements similar to those of a felony defined as such under Alaska law at the time the offense was committed[.]" Our prior case law interprets this statute to require us to focus on the similarity of the elements of the out-of-state and Alaska offenses, not on the facts of the defendant's prior felony. An out-of-state statute may be similar to its Alaska counterpart even though some conduct is penalized by the out-of-state statute that is not penalized by the Alaska statute." Alaska Statute 12.55.145(a)(1)(B) only requires similarity between the two offenses, not that they be identical If the out-of-state statute is more narrowly defined-if it criminalizes less conduct than its Alaska counterpart-the defendant's prior conviction will qualify as a prior felony conviction.

Butts was convicted under Oklahoma's second-degree burglary statute, which states:

Alaska's second-degree burglary elements:
a person
1) enters or remains unlawfully
2) in a building
3) with the intent to commit a crime in the building.
Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or breaks into or forcibly opens, any coin-operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.
Alaska defines burglary in the second degree as:
(a) A person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime in the building.
The elements of the Alaska and Oklahoma statutes can be illustrated as follows:
Oklahoma's elements under which Butts was convicted:
a person
1) breaks and enters
2) any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or breaks into or forcibly opens, any coin-operated or vending machine or device
3) with intent to steal any property therein or to commit any felony.

The first and third elements of the Oklahoma statute appear to generally be more restrictive than the Alaska statute (the Alaska statute appears to criminalize conduct which might not be criminal under the Oklahoma statute). It is only the second element in the Alaska statute that is apparently more restrictive than the Oklahoma statute. But Alaska defines "building" broadly. Alaska Statute 11.81.900(b)(4) states:

"building", in addition to its usual meaning, includes any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business; when a building consists of separate units, including apartment units, offices, or rented rooms, each unit is considered a separate building[.]

Alaska Statute 11.81.900(b)(49) states:

"propelled vehicle" -means a device upon which or by which a person or property is or may be transported, and which is self-propelled, including automobiles, vessels, airplanes, motorcycles, snow machines, all-terrain vehicles, sailboats, and construction equipment[.] |

Therefore, even though the Alaska burglary statute only apparently covers the entry into buildings on its face, given the broad definition of building and the broad definition of vehicle, we conclude that the Alaska statute criminalizes entry into almost every building and conveyance listed in the Oklahoma statute. In our opinion, the fact that the Oklahoma statute criminalizes entry into vending machines does not make the statute dissimilar. As stated earlier, the fact that Oklahoma's statute prohibits conduct not covered by Alaska's statute does not bar the conclusion that the statutes are similar. Alaska Statute 12.55.145(a)(1)(B) only requires similarity between the statutes, not that they be identical." We conclude that the Oklahoma statute criminalizing burglary in the second degree is sufficiently similar to the Alaska statute criminalizing burglary in the second degree for Butts's Oklahoma burglary conviction to qualify as a prior felony conviction under AS 12.55.145.

Butts also argues that Judge Funk erred in finding that his Oklahoma conviction for assault and battery with a dangerous weapon qualified as a prior felony conviction for purposes of presumptive sentencing.

The Oklahoma assault and battery with a dangerous weapon statute under which Butts was convicted stated: |

Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person ... is guilty of a felony[.]

Alaska's assault in the third degree statute, AS 11.41.220, states:

(a) A person commits the crime of assault in the third degree if that person
(1) recklessly
(A) places another person in fear of imminent serious physical injury by means of a dangerous instrument;
(B) causes physical injury to another person by means of a dangerous instrument[.]

The elements of Alaska's statute as compared to Oklahoma's statute are as follows:

Alaska's third-degree assault elements:
1) recklessly
2) places another person in fear of imminent serious physical injury or causes physical injury to another person
3) by means of a dangerous instrument.
Oklahoma's elements under which Butts was convicted:
1) intent to do bodily harm
2) commits any assault, battery, or assault and battery upon the person of another
3) with any sharp or dangerous weapon.

Both statutes criminalize assaults with dangerous weapons. It generally appears that anyone convicted under the Oklahoma statute would also violate the Alaska statute. We can conceive of one exception. Under the Oklahoma statute, a person conceivably could threaten another person with a dangerous weapon with intent to do bodily harm but not strike the vietim or place the victim in fear of imminent serious physical injury. However, that seems to us to be a small set of cases. If a person attacks another with a sharp or dangerous weapon with the intent to do bodily harm, it seems unlikely that the victim would not either be placed in fear of imminent serious physical injury or would not be injured in some way. We accordingly conclude that Judge Funk did not err in determining that the elements of the Oklahoma and Alaska statutes were sufficiently similar so that Butts's prior Oklszshoma assault conviction qualified as a prior felony conviction for purposes of presumptive sentencing.

Merger of prior convictions

Butts argues that Judge Funk erred in concluding that Butts's Oklahoma burglary and assault convictions did not merge for purposes of presumptive sentencing. The resolution of this issue turns on an interpretation of AS 12.55.145(a)(1)(C). That statute provides that separate convictions arising "out of a single, continuous criminal episode during which there is no substantial change in the nature of the criminal objective" constitute a single conviction. The statute does not allow the convictions to merge if the defendant received consecutive sentences. The statute also provides that "offenses committed while attempting to eseape or avoid detection or apprehension after the commission of another offense are not part of the same criminal episode or objective[l.]" The commentary to the criminal code provides some examples:

The phrase "single, continuous criminal episode" is intended to limit the applicability of this provision to a single eriminal event out of which a number of offenses could be charged. For example, the breaking and entering of a building with the intent to commit theft, which can be charged as burglary, and the taking of property in the building which can be charged as theft. In such an instance, convictions for both burglary and theft would be considered a single conviction under this section. However, the commission of three burglaries involving three buildings in a single day, would not be considered part of a "single, continuous criminal episode".
Similarly, the phrase "substantial change in the nature of the criminal objective" is intended to limit the applicability of the provision to a single criminal objective. In the preceding example, the criminal objective is to obtain property and the breaking and entering is an incident of that objective. However, assume that the defendant takes a hostage to facilitate his flight, and then decides to commit a sexual assault on the hostage. He is subsequently convicted of burglary, theft, kidnapping and sexual assault. In such a cireum-stance the defendant would have been con-viected of three prior offenses for purposes of this section, burglary-theft, kidnapping and sexual assault. Additionally, the last clause of subsection (a)(8) provides that an offense committed while attempting to escape or avoid detection or apprehension after the commission of another offense is not included within the provision and is to be considered an additional conviction for purposes of presumptive sentencing.

Butts's Oklahoma convictions arose from his breaking into the home of Paul Caplinger. At some point during the burglary, Butts hit Caplinger with the ceramic top to a toilet water reservoir, causing serious injuries to Caplinger. Butts argued to Judge Funk that he committed the assault merely to facilitate his theft of the property during the burglary. He argued that therefore "there was no substantial change in the nature of the criminal objective" of his offenses.

Butts had the burden to prove by clear and convincing evidence that the convictions should merge. The facts of Butts's Oklahoma felonies are subject to two interpretations. But regardless, the offenses would not merge under either interpretation. Butts entered Caplinger's residence with the intent to steal property. He either assaulted Caplinger "while attempting to escape or avoid detection or apprehension" of the burglary or he committed the assault for another purpose and the assault constituted 'a "substantial change in the nature of the criminal objective" of the burglary. Neither interpretation of Butts's prior Oklahoma felonies would qualify as a single conviction under AS 12.55.145. We therefore conclude that Judge Funk did not err in treating Butts's prior Oklahoma assault convictions as separate convictions for purposes of presumptive sentencing.

Aggravating factor

Butts contends that Judge Funk erred in finding the aggravating factor that Butts was on bail release "for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element[.] According to the pre-sentence report, in 1998 Butts was charged with assault in the fourth degree and concealment of merchandise. Butts's current robbery offense occurred on January 14, 1999. The presentence report reflects that on June 21, 1999, Butts was convicted of concealment of merchandise and the assault in the fourth degree charge was dismissed. It follows that Butts was on release on the assault charge at the time he committed the robbery offense. Judge Funk was entitled to rely on the information in the presentence report unless Butts presented substantial evidence or made a testimonial denial that the information in the report was inaccurate. Butts made no such presentation. He merely argues that the information in the presen-tence report was insufficient to establish the aggravating factor by clear and convincing evidence. We conclude that Judge Funk was entitled to rely on the information in the presentence report and conclude that he did not err in finding the aggravating factor.

Mitigating factors

Butts proposed three mitigating factors at sentencing: AS 12.55.155(d)(8) (committed the offense under duress), (d)(9) (least serious conduct), and (d)(13) (consistently minor crimes). Judge Funk rejected all three mitigating factors, finding that Butts failed to prove them by clear and convincing evidence. This court reviews Judge Funk's decisions under the clearly erroneous standard.

a) AS 12.55.155(d)(8) (commutted the offense under duress)

In support of this mitigating factor, Butts relied on a statement he made immediately after being caught that he owed a man $200 for drugs, the man had a gun, and he foreed Butts to steal the money so Butts could pay him back. But when Butts was interviewed by the police later, he stated that he was a crack cocaine addict and had taken the purse to obtain money so he could buy more crack cocaine. Even if we assume that Butts's first statement, if established as true, could support a finding that he acted under duress, Judge Funk could reasonably conclude that Butts's later statement undermined the credibility of his first statement. Judge Funk found that the only thing that he was convineed of was that Butts had a serious cocaine problem and was seeking money so that he could purchase drugs. He concluded that this was insufficient to establish the duress mitigator. This finding is not clearly erroneous.

b) AS 12.55.155(d)(9) (least serious conduct)

Butts argued that his robbery offense was among the least serious conduct included in the definition of that offense because he had used little or no foree to take Joens's purse. Judge Funk found that Butts's robbery offense was not a least serious offense but was somewhere in the middle range of robbery offenses. In rejecting the mitigating factor, Judge Funk pointed out that the robbery took place in a parking lot at night and that Butts used enough force so that Joens was knocked to the ground. We conclude that Judge Funk's findings are not clearly erroneous.

c) AS 12.55.155(d)(18) (the facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently mimor and inconsistent with the imposition of a substantial period of imprisonment)

Judge Funk rejected this mitigating factor on several grounds. First, as a matter of law, Judge Funk was required to reject this mitigating factor once he rejected the mitigating factor that Butts's offense was among the least serious robbery offenses. Furthermore, Judge Funk also concluded that Butts's current robbery offense and his prior record suggested that the mitigating factor would not apply even if he were not precluded from finding the mitigating factor as a matter of law. Our review of the record supports Judge Funk's conclusion.

Excessive sentence

Lastly, Butts argues that the sentence Judge Funk imposed is excessive. But the sentence Judge Funk imposed, eight years with two years suspended, was the presumptive sentence (six years) plus two suspended years. Judge Funk was required to impose the presumptive sentence by law so it is difficult to conclude that the sentence is excessive. In sentencing Butts, Judge Funk pointed to the seriousness of Butts's current offense and his extensive prior ree-ord. He concluded that Butts's offenses arose from drug and alcohol abuse, and he made provisions for Butts to receive treatment for his substance abuse. Judge Funk's sentencing remarks support the sentence he imposed. We conclude that the sentence is not clearly mistaken.

Conclusion

We reject all of Butts's claims of error. We accordingly AFFIRM his convictions and sentence.

      . AS 11.41.510(a)(1).

      . AS 12.55.125(d)(2).

      . AS 12.55.155(c)(8), (12).

      . 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 8.11(d)(1), p. 445 (1986) (citation omitted); see also Peter G. Guthrie, Annotation, Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381, 1383 (1972).

      . Winn v. Commonwealth, 21 Va.App. 179, 462 $.E.2d 911, 913 (1995).

      . See State v. Sein, 124 N.J. 209, 590 A.2d 665, 669-70 (1991).

      . Mackbee v. State, 575 So.2d 16, 36 (Miss.1990) (quoting Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738, 742 (1984)).

      . 202 Conn. 349, 521 A.2d 150 (1987), overruled on other grounds, Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).

      . Id. at 155-56.

      . Id. at 155.

      . People v. Brooks, 202 Ill.App.3d 164, 147 Ill. Dec. 519, 559 N.E.2d 859, 862 (1990), abrogated on other grounds, People v. Williams, 149 Ill.2d 467, 174 Ill.Dec. 829, 599 N.E.2d 913, 917 (1992); accord, Ratford v. State, 52 Md.App. 163, 447 A.2d 496, 500 (1982), aff'd in pertinent part, 296 Md. 289, 462 A.2d 1192 (1983).

      . Restatement (Second) of Torts § 18 Cimt. C (1965).

      . 424 SW.2d 627 (Tex.1967).

      . 1d. at 629.

      . Id. at 629-30.

      . 190 Miss. 656, 1 So.2d 510 (1941).

      . Id. at 511.

      . See generally LaFave & Scott, supra note 4, § 7.15(b), at 303.

      . 108 N.M. 208, 769 P.2d 1299 (App.1989), overruled on other grounds, State v. Fuentes, 119 N.M. 104, 888 P.2d 986, 988 (App.1994).

      . Id. at 1301.

      . 113 N.M. 437, 827 P.2d 152 (App.1992).

      . Id. at 154-56.

      . 766 So.2d 310 (Fla.Dist.Ct.App.2000).

      . Id. at 311.

      . Id.; see also People v. Harris, 65 Cal.App.3d 978, 135 Cal.Rptr. 668, 674 (1977) (holding that indirect use of force constituted robbery when defendant tried to push a jewelry case lid open while the victim tried to hold it shut).

      . See Harlow v. State, 820 P.2d 307, 309 (Alaska App.1991).

      . See State v. Delagarza, 8 P.3d 362, 367-68 (Alaska App.2000).

      . See Delagarza, 8 P.3d at 367-68.

      . See id. at 366.

      . Okla. Stat. tit. 21, § 1435 (1983).

      . AS 11.46.310(a).

      . AS 11.46.310(a).

      . Okla. Stat. tit. 21, § 1435.

      . See AS 11.81.900(b)(4); see also Austin v. State, 883 P.2d 992, 993 (Alaska App.1994); Pushruk v. State, 780 P.2d 1044, 1047 (Alaska App.1989) (restaurant inside of hotel was separate "building" for purpose of burglary statute); Wesolic v. State, 837 P.2d 130, 132 (Alaska App. 1992) (locked bedrooms and garage in home constituted separate "building" for purposes of burglary conviction even though defendant rented a bedroom in the home). But see Arabie v. State, 699 P.2d 890, 893 (Alaska App.1985) (a restricted area inside of a building open to the public is not a separate "building" for purposes of burglary statute).

      . See Delagarza, 8 P.3d at 367.

      . See id. at 367-68.

      . Former Okla. Stat. tit. 21, § 645 (1983).

      . AS 11.41.220.

      . Former Okla. Stat. tit. 21, § 645.

      . Former Okla. Stat. tit. 21, § 645.

      . AS 12.55.145(a)(1)(C).

      . AS 12.55.145(a)(3)(C).

      . See id.

      . Commentary on the Alaska Revised Criminal Code, 2 Senate Journal Supp. No. 47 at 156-59 (June 12, 1978).

      . AS 12.55.145(d).

      . AS 12.55.145(a)(1)(C), (a)(3)(C).

      . AS 12.55.155(c)(12).

      . See Evan v. State, 899 P.2d 926, 930 (Alaska App.1995) (sentencing judge entitled to rely on victim's account in presentence report unless defendant makes a testimonial denial or otherwise presents substantial information that the report might be inaccurate).

      . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991).

      . See Jackson v. State, 890 P.2d 587, 597 (Alaska App.1995).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).


text:
    STATE of Alaska, Appellant, v. Shavonne L. ESKRIDGE, Appellee.
    No. A-8228.
    Court of Appeals of Alaska.
    Aug. 23, 2002.

      Seott L. Mattern, Assistant District Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Shavonne L. Eskridge, pro se, Fairbanks.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Shavonne L. Eskridge pleaded no contest to misconduct involving a controlled substance in the third degree, a class B felony, for selling the drug ecstasy to a police agent. Superior Court Judge Niesje J. Steinkruger sentenced Eskridge, a first felony offender, to a suspended imposition of sentence of one year. As a condition of probation, she ordered Eskridge to be incarcerated from the day of sentencing, December 21, 2001, to January 11, 2002-approximately thirty days. The state appeals the sentence, arguing it is too lenient.

On February 16, 2001, Eskridge sold five tablets of ecstasy to a police agent for $175. On March 9, 2001, Eskridge sold an additional four tablets to the police agent for $120. Eskridge was arrested immediately following this sale. On being questioned by the police, Eskridge admitted her involvement and agreed to assist the investigators in obtaining more ecstasy from her source. But apparently the word of her arrest got out, and she was unable to obtain more ecstasy to assist the police in making other drug arrests.

A grand jury indicted Eskridge on two counts of misconduct involving a controlled substance in the third degree. The state entered into a plea agreement with Eskridge; the state dismissed one of the counts for Eskridge's plea of no contest to the other count. As part of the plea agreement, the state agreed that Eskridge's sentence would not exceed ninety days of imprisonment.

Eskridge was nineteen years old at the time of sentencing. She had no prior erimi-nal record. She was a sophomore at the University of Alaska and is a single parent of a fifteen-month-old son. In sentencing Esk-ridge, Judge Steinkruger found that her offense was not mitigated; it was a "typical street sale offense." She found that Esk-ridge was "a typical to slightly mitigated offender" with "a very good record" and that the "likelihood of [her] successful rehabilitation [was] very good." Judge Steinkruger reasoned that a suspended imposition of sentence would be appropriate in this case. She emphasized that if Eskridge successfully completed her probation, her felony conviction could be removed from her record. But if Eskridge reoffended, the court could impose severe penalties, up to the maximum sentence for her offense. Judge Steinkruger emphasized the importance of allowing Esk-ridge to have the opportunity to complete her education. The sentence of imprisonment was designed to begin immediately and to end just in time for Eskridge to attend the second semester at the University of Alaska. Judge Steinkruger pointed out that this sentence would be the equivalent of a thirty-day sentence if good time were deducted.

On appeal, the state relies on State v. Jackson, where we discussed the appropriate sentencing ranges for first offenders convicted of class B felonies. We stated in Jackson that "a probationary sentence-a term involving less than ninety days of un-suspended incarceration-should be reserved for cases that are sufficiently mitigated in terms of both the offender and the offense." We went on to state that "a probationary sentence will be appropriate only when an offender's conduct is significantly less serious than typical conduct for the offense and only when the offender's prospects for rehabilitation are shown to be significantly better than the typical first offender's conduct. The state points out that although Judge Stein-kruger found that Eskridge had good prospects for rehabilitation, Judge Steinkruger did not find Eskridge's offense to be mitigated. The state therefore argues that Judge Steinkruger erred in giving a sentence of less than ninety days of imprisonment.

The Jackson guidelines are of questionable validity in drug offenses. The reason for the development of somewhat different guidelines for drug offenses appears to be rooted in the fact that drug offenses are easier to compare than other offenses. Other offenses, such as burglary, can comprise a wide variety of criminal behavior. But drug offenses can be categorized more easily in terms of seriousness. And, in fact, in 1971, the supreme court categorized drug offenses in Waters v. State. We relied on the Waters's categories and subsequent case law in developing sentencing guidelines in drug cases.

Most of the sentences we have reviewed of class B felony drug offenses involve cocaine trafficking. But we would expect these guidelines to apply to other felony class B felony drug offenses unless we can articulate a good reason to depart from these guidelines. The guidelines for first felony offenders convicted of class B felony drug offenses can be stated as follows: One, for cases where the defendant has engaged in the on-going commercial sale of smaller quantities of cocaine, "we have routinely approved first-offense sentences of up to two years of unsuspended time[.] Two, for cases where the defendant has engaged in "a highly lucrative commercial pattern of cocaine trafficking-one involving large quantities of cocaine and large amounts of money," we established a guideline of up to six years with two years suspended. Three, for cases where the defendant engaged in on-going commercial sales and whose activity fell in between the other two categories, we approved sentences of up to three years of imprisonment.

The fact that the sentencing guidelines for first felony offenders convicted of drug offenses are more lenient than the Jackson guidelines suggests that the sentencing guidelines for mitigated drug offenses and offenders might also have greater flexibility and be more lenient than the Jackson guidelines.

In the present case, Judge Steinkruger chose to emphasize Eskridge's rehabilitation. She concluded that imposing a sentence that allowed Eskridge to continue her education uninterrupted by her term of imprisonment would further this goal. Although this was certainly a very favorable result for Eskridge, Judge Steinkruger made it clear that a failure on probation would have severe consequences. We accordingly conclude Eskridge's sentence was not clearly mistaken.

      . AS 11.71.030(a), (c).

      . 776 P.2d 320 (Alaska App.1989).

      . Id. at 326-27.

      . Id. at 327.

      . Id. (footnote omitted).

      . 483 P.2d 199 (Alaska 1971).

      . See Kelly v. State, 622 P.2d 432, 440 (Alaska 1981); LeDuff v. State, 618 P.2d 557, 558 (Alaska 1980); Major v. State, 798 P.2d 341, 344 (Alaska App.1990), superseded by statute on other grounds as stated in Knight v. State, 855 P.2d 1347, 1348-49 (Alaska App.1993); Bush v. State, 678 P.2d 423, 425-26 & n. 1 (Alaska App.1984); Stuart v. State, 698 P.2d 1218, 1224 (Alaska App.1985).

      . Major, 798 P.2d at 344.

      . Id.; see also Stuart v. State, 698 P.2d 1218, 1223-24 (Alaska App.1985); Lausterer v. State, 693 P.2d 887, 892 (Alaska App.1985).

      . See Major, 798 P.2d at 345-46.

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).


text:
    STATE of Alaska, Appellant, v. Dusan BOCESKI, Appellee.
    No. A-7894.
    Court of Appeals of Alaska.
    Aug. 23, 2002.
    Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

North Slope Borough Sergeant Rayme' Grubbs arrested Dusan Boceski after he overheard Boceski sell cocaine to LH. The sale took place at LH residence in her arctic entryway. Sergeant Grubbs, with L.H.'s permission but without Boceski's knowledge, listened to the drug transaction from just inside the door of L.H.'s residence. Following his arrest, Boceski moved to suppress the evidence seized and statements he made, arguing that Sergeant Grubbs's surreptitious eavesdropping of the drug transaction violated his right to privacy under the Alaska Constitution. Superior Court Judge Michael I. Jeffery granted the motion. After granting the motion to suppress, Judge Jeffery granted Boceski's motion to dismiss the indictment. The state appeals Judge Jeffery's ruling. We reverse.

Facts and proceedings

On October 12, 2001, LH. contacted the North Slope Borough Police Department about being a confidential informant for the police department. LH. told Sergeant Grubbs that Boceski, a local drug dealer, sold cocaine throughout the community. Sergeant Grubbs discussed the case with other officers and devised a plan for LH. to purchase drugs from Boceski at L.H.'s residence. According to the plan, LH. would contact Boceski, have him come over, and sell her two grams of cocaine. When Boceski arrived, LH. would tell him she only had enough money for one gram. Sergeant Grubbs would stand inside the darkened living room, located next to the arctic entryway, "with the door cracked open about an inch" and listen to the conversation. After Boceski gave her the cocaine, LH. would say, "This doesn't look like a gram," and Sergeant Grubbs would enter the room and arrest Boceski.

Sergeant Grubbs conducted a pat-down search of LH. before the buy and gave her $150.00 to purchase cocaine. Sergeant Grubbs also placed a cassette recorder in the arctic entryway and one in his shirt pocket. (Sergeant Grubbs had not obtained a Glass warrant prior to recording the conversation.)

Before Sergeant Grubbs heard Boceski arrive, he went into the living room and turned off the lights. He told L.H.'s brother, who was also in the living room, to be quiet and not to interrupt. Sergeant Grubbs did not use a sensory-enhancing listening device to listen to the conversation, but he did start the tape recorder. Sergeant Grubbs heard a knock on the door and then heard Boceski's voice. According to Sergeant Grubbs, he could hear little of what was said. He did, however, hear LH. say something about her parka and then say, "This doesn't look like a gram." At that point, he entered the entryway, recognized Boceski, and saw him throw money on the freezer. He also saw LH. throw a small clear plastic bag containing a white powdery substance on to the freezer.

Sergeant Grubbs arrested and searched Boceski. During the search, he found nine bindles of cocaine on Boceski. After he was warned of his Miranda rights, Boceski made several incriminating statements. Based on his observations, the evidence seized from Boceski, and L.H.'s and Boceski's statements, Sergeant Grubbs obtained a search warrant for Boceski's residence. There he seized a small amount of cocaine and various drug paraphernalia.

The state indicted Boceski on one count of misconduct involving a controlled substance in the third degree for selling cocaine. Boceski moved to suppress Sergeant Grubbs's observations, the audiotape recording, and all of the evidence seized following Boceski's arrest, including Boceski's Miran-diged statements.

Judge Jeffery found that under State v. Glass, Boceski had a reasonable expectation that his conversation with LH. would not be recorded and thus that Sergeant Grubbs's failure to obtain a Glass warrant prior to recording the conversation between LH. and Boceski violated Boceski's right to privacy under the Alaska Constitution. The state does not dispute this ruling.

However, Judge Jeffery also ruled that Sergeant Grubbs violated Boceski's right to privacy by evesdropping on Boceski's conversation with LH. Judge Jeffery therefore suppressed Sergeant Grubbs's observations in the entryway and also prohibited Sergeant Grubbs from testifying about the conversation. He further ruled that the evidence obtained from Boceski during his arrest and during the search of his residence was illegal fruit of Sergeant Grubbs's unlawful eavesdropping and suppressed the evidence. Although Judge Jeffery acknowledged that L.H.'s testimony about the transaction was admissible, he ruled that the inadmissible evidence appreciably affected the grand jury's indictment and granted Boceski's motion to dismiss. This appeal followed.

Boceski had no reasonable expectation of privacy in a conversation overheard by an officer who was lawfully present in the adjacent room

The two-prong test discussed in State v. Glass defines the scope of Alaska's right to be free from unreasonable governmental intruction. To establish an unwarranted invasion of individual privacy under the Alaska Constitution, a person must first show that he or she exhibited an actual (subjective) expectation of privacy in the activity being monitored by the government. This is a question of fact. Second, a person must show that his or her expectation of privacy is one that society is willing to recognize as reasonable. This is a question of law.

Judge Jeffery found that Boceski exhibited an actual expectation of privacy. This finding is supported by the record and is not clearly erroneous. However, this court independently decides whether Boceski's expectation of privacy from eavesdropping was reasonable.

Judge Jeffery relied heavily on State v. Glass to reach his conclusion to suppress the evidence seized from Boceski. In Glass, the Alaska Supreme Court held that "one who engages in a private conversation is ... entitled to assume that his words will not be broadcast or recorded absent his consent or a warrant." Glass involved an informant who wore a radio transmitting device intended to record the conversation of the defendant and the informant during a drug purchase. In holding that the police must first obtain a warrant before surreptitiously recording private conversations between informants and defendants, the court pointed out it was the electronic monitoring or recording that offended the notions of privacy in Alaska, not eavesdropping. The court found that when a person engages in a private conversation with another, the speaker understands that his words may be repeated by the listener, but he does not foresee that his words will be simultaneously recorded or broadcast without his prior consent or a warrant. To hold otherwise, according to the court, would result in a dramatic chilling effect on speech.

This court discussed the Glass rationale in State v. Page. This court noted that the underlying concern of Glass was not only the possible effects surreptitious recording has on speech, but also on society's concern that the government may monitor or record a private citizen's words or conduct by technological assistance without his or her knowledge. In Page, the police hid a video camera in the apartment of an informant and recorded the drug transaction without the defendant's knowledge. The police only videotaped the interaction between the informant and the defendant; they made sure not to record the audio portion of the conversation. This court held that if a person engages in a private conversation and the person has a reasonable right to visual privacy, Alaska's right to privacy requires "the police . [to] secure a warrant before surreptitiously videotaping the conversation, even if they turn the sound off."

Courts have generally concluded that if officers overhear conversations from places where they have a right to be; use only their unaided, natural senses; and are in a place where the speaker would anticipate someone might be, then the speaker has a diminished expectation of privacy that is not protected by the Fourth Amendment. Professor La-Fave notes, "At least when the officer only employs his natural senses, the prevailing rule is that such uses of the senses 'made from a place where a police officer has a right to be do not amount to a search in the constitutional sense."

Boceski has stated no compelling reason why we should depart from this general rule in applying the Alaska Constitution. Moreover, we are aware of only one jurisdiction, Massachusetts, that requires officers to secure a warrant before surreptitiously recording an informant's conversation with a defendant; yet even Massachusetts has held that a person does not have a reasonable expectation of privacy when an officer overhears a conversation, using only his natural senses, from a place were he has a lawful right to be.

It is uncontested that Sergeant Grubbs was lawfully present in L.H.'s home, and Judge Jeffery so found. LH. invited Sergeant Grubbs into her home and stood behind the door with her permission. Although Boceski may have believed that his conversation with L.H. was private, he ran the risk that someone might be present in L.H.'s living room and in a position to overhear this conversation. In fact, LH.'s brother was in the living room with Sergeant Grubbs when the drug transaction took place. We hold that Boceski had no reasonable expectation of privacy against eavesdropping by someone lawfully present in LH.'s home. Accordingly, Sergeant Grubbs's eavesdropping of Boceski's conversation did not violate Boceski's constitutional right to privacy. Judge Jeffery erred in suppressing any evidence that Sergeant Grubbs obtained from overhearing Boceski's conversation from behind the door.

The state contends that if we conclude that Judge Jeffery erred in suppressing evidence based upon Sergeant Grubbs's surreptitiously listening to Boceski's conversation with LH., we should remand the case to allow Judge Jeffery to determine what evidence should be suppressed based upon the illegal tape recording itself. The state also argues that we should remand the case to Judge Jeffery to allow him to redetermine whether suppression of the tape recording and its fruits would require dismissal of the indietment. Boceski does not oppose this position. We accordingly reverse Judge Jeffery's order suppressing evidence based upon Sergeant Grubbs surreptitiously overhearing the drug transaction. We remand the case to allow the superior court to determine what evidence should be suppressed based upon Sergeant Grubbs's illegal tape recording of the drug transaction and to re-evaluate whether the indictment should be dismissed.

REVERSED and REMANDED.

      . AS 11.71.030(a)(1}.

      . 583 P.2d 872 (Alaska 1978).

      . 583 P.2d 872 (Alaska 1978) (adopting Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967).

      . Id. at 875.

      . See id.; State v. Page, 911 P.2d 513, 515 (Alaska App.1996).

      . See Page, 911 P.2d at 515.

      . See Glass, 583 P.2d at 875; Page, 911 P.2d at 515.

      . See Page, 911 P.2d at 515-16.

      . See id.

      . Glass, 583 P.2d at 875.

      . Id. at 874.

      . Id. at 877-78, 880.

      . Id. at 877.

      . Id.

      . 911 P.2d 513 (Alaska App.1996).

      . Id. at 516-17.

      . Id. at 515.

      . Id.

      . Id.

      . See e.g., United States v. Mankani, 738 F.2d 538, 542 (2nd Cir.1984); United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988); United States v. Agapito, 620 F.2d 324, 329-30 (2nd Cir.1980); United States v. Jackson, 588 F.2d 1046, 1051-52 (5th Cir.1979); United States v. Fisch, 474 F.2d 1071, 1077-79 (9th Cir.1973); People v. Hart, 787 P.2d 186, 187-88 (Colo.App. 1989); State v. Benton, 206 Conn. 90, 536 A.2d 572, 575 (1988) ("Conversations carried on in any type of residence ... in a tone audible to the unaided ear of a person located in a place where that person has a right to be, and where a person can be expected to be, are conversations knowingly exposed to the public.").

      . 1 Wayne R. LaFave, Search and Seizure § 2.3(c), at 480 (3rd ed.1996) (footnote and citation omitted).

      . See also Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029, 1034 (1987) (holding that warrantless electronic surveillance of conversations with the consent of just one party violates the right to be free from unreasonable searches and seizures under the Massachusetts Constitution); Commonwealth v. Panetti, 406 Mass. 230, 547 N.E.2d 46, 47 (1989) ("a person would have no justified expectation of privacy in conversations that can be heard by the unaided ear of an eavesdropper lawfully in a contiguous apartment"); Commonwealth v. Dinnall, 366 Mass. 165, 314 N.E.2d 903, 904-05 (1974).