Opinion
Court of Appeals No. A-10551.
September 28, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3UN-04-340 CR.
Dave Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Izaz Khan was on felony probation when he caused a disturbance on a People Mover bus in Anchorage. Khan was in a wheelchair, so the bus driver brought him aboard with a ramp. When the driver began to secure the wheelchair for travel, Khan yelled at the driver and accused him of assault. Khan demanded to get off the bus, but when the driver unstrapped his wheelchair, Khan refused to leave. The police eventually intervened and removed Khan from the bus.
One of the conditions of Khan's probation required him to "[c]omply with all . . . state . . . laws." After the bus incident, Khan's probation officer filed a petition to revoke Khan's probation, alleging that he had violated his probation by committing the crime of disorderly conduct.
AS 11.61.110(a)(2).
At the hearing on the petition, the State presented the testimony of the bus driver and one of the police officers who responded to the disturbance. Khan's attorney argued that this testimony did not establish "that Khan was ever informed that he was disrupting anybody."
The judge found that the State had proven that Khan committed the crime of disorderly conduct. The judge revoked Khan's probation and imposed the balance of his suspended sentence.
Khan now appeals, arguing that there was insufficient evidence that he committed the crime of disorderly conduct. We review the superior court's factual findings for clear error and its legal conclusions de novo. We consider the evidence in the light most favorable to the superior court's decision.
Pastos v. State, 194 P.3d 387, 391 (Alaska 2008).
Edwards v. State, 34 P.3d 962, 966 (Alaska App. 2001).
The parties agree that the State was required to prove that Khan violated the following section of the disorderly conduct statute:
(a) A person commits the crime of disorderly conduct if,
. . . .
(2) in a public place or in a private place of another without consent, and with intent to disturb the peace and privacy of another or with reckless disregard that the conduct is having that effect after being informed that it is having that effect, the person makes unreasonably loud noise[.]
AS 11.61.110(a)(2) (emphasis added).
This statute requires proof that the defendant continued to make an unreasonably loud noise after he was "specifically informed that the noise is disturbing the peace and privacy of other people." This warning "guards against vagueness and uneven enforcement in this situation."
Tuttle v. State, 175 P.3d 60, 62 (Alaska App. 2008).
Alaska Criminal Code Revision Part V, at 86 (Tent. Draft Jan. 1978).
The hearing testimony indicates that, during the disturbance, at least one passenger told Khan that his accusations against the bus driver were baseless: "[H]e hasn't even touched you." Another passenger said that after Khan threatened him, the passenger replied, "[J]ust take your medicine." But even when we consider these statements in the light most favorable to the judge's decision, we cannot construe them to be the specific warning required by the statute.
There was no evidence that anyone informed Khan that he was creating a disturbance. There was no evidence that anyone even told Khan to quiet down. We therefore conclude that there was insufficient evidence to establish that Khan had committed the crime of disorderly conduct.
See generally Earley v. State, 789 P.2d 374, 375-76 (Alaska App. 1990) (finding sufficient proof of disorderly conduct when the defendant continued to make loud noise after a neighbor told him to be quiet).
We REVERSE the superior court's order revoking the defendant's probation.