Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986). · Go Syfert
Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986). Cases Citing This Book View Copy Cite
26 citation events (12 in the last 25 years) across 9 distinct courts.
Strongest positive: MERLINO (CARRIE) VS. STATE (nev, 2015-09-10)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) MERLINO (CARRIE) VS. STATE
Nev. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime.
discussed Cited as authority (verbatim quote) Merlino v. State
Nev. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime.
examined Cited as authority (verbatim quote) Merlino v. State (2×)
Nev. · 2015 · signal: see · quote attribution · 2 verbatim quotes · confidence high
intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime.
discussed Cited as authority (verbatim quote) MERLINO (CARRIE) VS. STATE
Nev. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime.
discussed Cited as authority (verbatim quote) Houston v. Municipality of Anchorage
Alaska Ct. App. · 2002 · quote attribution · 1 verbatim quote · confidence high
i is the element of habitation, not the nature of the structure, that elevates the crime of burglary to first degree.
discussed Cited as authority (rule) United States v. Lee Yerkes
6th Cir. · 2020 · confidence medium
Code § 9A.52.010(2) (1985); Walker v. State, 63 Ala. 49 , 51–52 (1879); Sears v. State, 713 P.2d 1218, 1220 (Alaska Ct. App. 1986); Thompson v. State, 477 S.W.2d 469 , 471–72 (Ark. 1972); Foster v. State, 220 So.2d 406, 407 (Fla. Dist.
discussed Cited as authority (rule) State v. Faria (2×)
Haw. · 2002 · confidence medium
Sears v. State, 713 P.2d 1218, 1219 (Alaska Ct.App.1986).
cited Cited as authority (rule) Semancik v. State
Alaska Ct. App. · 2002 · confidence medium
Sears v. State, 713 P.2d 1218, 1220 (Alaska App.1986). . 389 P.2d 915 (Alaska 1964). .
discussed Cited as authority (rule) Collins v. State (2×)
Alaska Ct. App. · 1999 · confidence medium
See Thomas v. State, 522 P.2d 528 , 531 n. 11 (Alaska 1974); Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986).
discussed Cited as authority (rule) Hale v. State
Alaska Ct. App. · 1988 · confidence medium
See, e.g., Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977) (whether to give a particular instruction is discretionary with trial judge); Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) (generally, words and phrases which have a commonplace meaning need not be defined for the jury).
discussed Cited as authority (rule) State v. Ison
Alaska Ct. App. · 1987 · confidence medium
In Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986), we noted that AS 11.46.310 was based upon a New York statute, and the New York statute, like the Alaska statute, did not define “enters.” We quoted from the commentary to the New York statute and concluded as follows: The word “enter” ... does not necessarily mean that the intruder must place his entire body inside the premises.
cited Cited "see" Young v. Embley
Alaska · 2006 · signal: see · confidence high
See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) (legislature presumed to be aware of common-law terms of art).
cited Cited "see" Robart v. State
Alaska Ct. App. · 2004 · signal: see · confidence high
See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) ("[Thhe trial court is under a duty to instruct the jury on the essential elements of the offense."). 38 .
cited Cited "see" Pitka v. State
Alaska Ct. App. · 2000 · signal: see · confidence high
See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986); see also Criminal Rule 30(b). .
discussed Cited "see" Snyder v. State (2×)
Alaska · 1996 · signal: see · confidence high
Id. [9] Relatedly, Alaska Criminal Rule 30 provides that the court "shall instruct the jury on all matters of law which it considers necessary for the jury's information in giving their verdict." Alaska R.Crim.P. 30(b); see Sears v. State, 713 P.2d 1218, 1219 (Alaska App. 1986). [10] Snyder's last offer was, of course, quantitatively different — he made it one more time. [1] A person in Snyder's position has a right to be independently tested at his expense.
discussed Cited "see" Hughes v. Harrelson (2×)
Alaska · 1993 · signal: see · confidence high
See John A. Appleman, Insurance Law & Practice § 4894.25 (Stephen Liebo ed., Supp. 1991). "[W]e believe our legislature is presumed to be aware of common law terms of art and the meaning such terms will carry into the courtrooms of this state." Sears v. State, 713 P.2d 1218, 1219 (Alaska App. 1986).
Retrieving the full opinion text from the archive…
Raymond SEARS, Appellant,
v.
STATE of Alaska, Appellee
A-975.
Court of Appeals of Alaska.
Feb 14, 1986.
713 P.2d 1218
Carol Greenberg, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant., Nancy R. Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.
Bryner, Coats, Singleton.
Cited by 24 opinions  |  Published

OPINION

Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge.

Raymond Sears was convicted, following a jury trial, of burglary in the second degree, AS 11.46.310. Alaska Statute 11.46.-310 provides: “(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 state proved at trial that Sears had been in the Gavora Shopping Mall in Fairbanks the evening of November 3, 1983. Some of the shops had closed, though the mall area was still open to the public. The “Sew’n Vac” store was closed, with a sliding iron gate pulled across the entrance to prevent patrons still in the mall from entering.

At trial, the state proved that Sears was observed straightening a clothes hanger, and that Sears used the clothes hanger to reach through the Sew’n Vac iron gate to obtain a hand-held vacuum cleaner worth approximately $100. The state did not dis[*1219] pute that only the clothes hanger, or at the most Sears’ arm, entered the Sew’n Vac store. At the close of evidence, the state proposed the following instruction regarding “enters” as used in AS 11.46.310:

A person enters a building when he introduces any part of his body or any part of any instrument, if such instrument is being used to commit the crime intended, by whatever means, into the building.

Sears objected to the proposed instruction, arguing that “enters” is a term within lay comprehension and that the definition proposed is not the current law in Alaska. Judge Gerald Van Hoomissen overruled Sears’ objection and gave the instruction to the jury. Sears now appeals Judge Van Hoomissen’s instruction.

Under Criminal Rule 30, the court “shall instruct the jury on all matters of law which it considers necessary for the jury’s information in giving their verdict;” Alaska R.Crim.P. 30(b). Further, the trial court is under a duty to instruct the jury on the essential elements of the offense. See Thomas v. State, 522 P.2d 528, 531 (Alaska 1974). However, whether or not a particular instruction should be given is left to the discretion of the trial judge. Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977).

Alaska Statute 11.46.310 requires a showing that the accused “enters or remains unlawfully.” This appeal involves the definition of the term “enters.” Generally, words which have a commonplace meaning need not be defined for the jury. Dunn v. State, 426 P.2d 993, 995 (Alaska 1967). However, “where the word is susceptible to differing interpretations, only one of which is a proper statement of the law, an instruction must be given.” McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971) (reversible error not to give instruction defining “concealed”).

We believe “enters” in the context of this case, is susceptible to more than one meaning. “Enters” could mean the defendant’s whole body, or it could mean part of his body, or it could mean entry merely by an instrument, as here. We believe that Judge Van Hoomissen did not abuse his discretion in defining “enters” for the jury. See Buchanan, 561 P.2d at 1207. We need only now determine whether the instruction was an accurate statement of Alaska law.

On appeal, Sears concedes that Judge Van Hoomissen’s instruction accurately reflects the common law definition of “enters.” See W. LaFave and A. Scott, Handbook on Criminal Law, § 96 at pp. 710-11 (West 1972). Sears argues, however, that the legislature’s codification of the criminal code never embraced the common law definition, and therefore it should be assumed the legislature considered the common law definition and rejected it.

In Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288, 300 (1952), the Supreme Court stated:

[Wjhere congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

Similarly, we believe our legislature is presumed to be aware of common law terms of art and the meaning such terms will carry into the courtrooms of this state. In addition, we note that AS 11.46.310 is derived substantially from New York Penal Law. Alaska Department of Law Criminal Code Manual, § 4 at 4-6 — 4-7 (1979); Arable v. State, 699 P.2d 890, 894-95 n. 3 (Alaska App.1985). While New York, like Alaska, does not define “enters” by statute, the commentaries are instructive:

The word “enter” ... does not necessarily mean that the intruder must place his entire body inside the premises. The former Penal Law ... provided that the word “enter” included “the entrance of the offender into such building or apartment, or the insertion therein of any part of his body or of any instrument or weapon held in his hand, and used, or intended to be used, to threaten or intim[*1220] idate the inmates, or to detach or remove.” ... Such conduct would also constitute “entering” within the meaning of subdivision five of § 140.00.

N.Y. Penal Law § 140.00 (McKinney 1973 & Supp.1984) and commentary at pp. 15-16.

We think that “enters” in Alaska also means that the intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime. We find no abuse of discretion regarding Judge Van Hoomissen’s instruction to the jury. See Buchanan, 561 P.2d at 1207.

AFFIRMED.