Hugo v. City of Fairbanks
1983 Alas. App. LEXIS 275, 658 P.2d 155 (1983)
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Rule of Law:
In the absence of clear legislative intent to the contrary, a municipal shoplifting ordinance that requires an 'intent to deprive' a seller of goods is interpreted to require an 'intent to permanently deprive,' consistent with the common law meaning of larceny-type offenses.
Facts:
- Ellen M. Hugo, an elderly Eskimo woman from Anaktuvuk Pass, traveled to Fairbanks in December 1981 to be with her hospitalized husband.
- On December 18, 1981, Hugo went to a Fairbanks shopping mall and entered the Pay 'N' Save store, carrying a purse, a small tote bag, and a paper sack containing shoes she had already purchased.
- Store security agent Mary Clarke observed Hugo place two pairs of suede gloves and four pairs of boys' socks into the paper sack.
- Hugo then went to a pharmacy checkout stand, paid for a plastic shopping bag, and placed the paper sack with the shoes, gloves, and socks inside the purchased plastic bag, without paying for the gloves and socks.
- Hugo returned to an aisle, removed two more pairs of gloves, and placed them in her tote bag.
- Hugo then left Pay 'N' Save by exiting through a closed checkout stand and stopped by a refreshment stand just outside the store entrance.
- When apprehended by Clarke, Hugo explained that she left the store to get a Coke at the refreshment stand, intending to resume shopping, and testified at trial that she knew she had the unpurchased items but was thirsty.
- Defense witness Dr. Peter Marshall, a friend of the Hugo family, testified that Hugo had a poor command of English, might have been taking Actifed (which causes thirst), and that shopping methods in Anaktuvuk Pass involved customers frequently leaving items at the front of the store before resuming shopping.
Procedural Posture:
- Ellen M. Hugo was charged with shoplifting, a violation of Fairbanks General Code Ordinance (FGCO) § 6.303(a).
- On March 31, 1982, Hugo was tried by the court (trial court/court of first instance) on the shoplifting charge.
- The trial court found Hugo guilty, interpreting FGCO § 6.303(a) as not requiring an intent to permanently deprive.
- Hugo appealed her conviction to the Court of Appeals of Alaska.
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Issue:
Does Fairbanks General Code Ordinance § 6.303(a), which prohibits taking possession of goods 'with the intent to deprive the seller of such goods without paying their purchase price,' require an intent to permanently deprive the seller of the merchandise?
Opinions:
Majority - Coats, Judge
Yes, Fairbanks General Code Ordinance § 6.303(a) requires an intent to permanently deprive a store of its merchandise for a shoplifting conviction. The court found that the ordinance's use of the term 'intent to deprive' should be interpreted according to its common law meaning in larceny-type offenses, which is 'intent to permanently deprive.' The court noted that both legal treatises (LaFave & Scott) and Alaska's general criminal code (AS 11.46.990(B)(2)) define 'deprive' in terms of permanent or near-permanent loss of economic value or recovery. The court contrasted the Fairbanks ordinance with Anchorage shoplifting ordinances in Morris v. Municipality of Anchorage and Smith v. Municipality of Anchorage, which lacked the 'intent to deprive' language and thus did not require such intent. It also distinguished Nell v. State, which concerned a robbery statute where the plain language deemphasized theft aspects. The court applied principles of statutory construction: ambiguities in penal statutes must be construed strictly against the government, and statutes in derogation of common law require clear and plain legislative expression to effect change. Absent any legislative history or evidence indicating the drafters intended a lesser standard than permanent deprivation, the common law meaning must prevail. Since the trial court explicitly stated it could not determine whether Hugo had an intent to permanently deprive Pay 'N' Save of its property, her conviction could not be upheld under the correct interpretation of the ordinance.
Analysis:
This case establishes a significant precedent for interpreting criminal ordinances, particularly those addressing common law offenses like larceny. It reinforces the principle of strict construction of penal statutes, requiring clear legislative intent to modify or dispense with traditional elements like the intent to permanently deprive. The ruling acts as a safeguard against overly broad interpretations of municipal ordinances, ensuring that criminal liability aligns with explicitly stated legislative purposes. Future cases involving theft-related statutes or ordinances using terms like 'deprive' without specific modification will likely require proof of permanent deprivation unless clear legislative history demonstrates a contrary intent.
