Opinion
Court of Appeals No. A-10267.
April 21, 2010.
Appeal from the District Court, Third Judicial District, Valdez, Daniel Schally, Judge, Trial Court No. 3VA-07-82 CR.
William Bixby, Law Offices of Bixby Franciosi, P.C., Valdez, for the Appellant. W. Michael Perry, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Following a bench trial, Keith D. Thomas was convicted of twenty-one hunting offenses committed between 2002 and 2006. All of the charges were based on the fact that Thomas claimed Alaska residency status for hunting purposes. Thomas appeals his convictions, arguing that the trial judge erred when he found that Thomas was not an Alaska resident. We conclude that the evidence supports the trial judge's ruling, and we therefore affirm Thomas's convictions.
Facts and proceedings
Thomas lived in Valdez from 1982 until 1999. In 1999, he moved to Michigan. However, Thomas retained ownership of a business property in Valdez, which he leased on a long-term basis to the Coast Guard. Thomas returned to Valdez each year, spending up to two months there in the fall. While Thomas was in Valdez, he worked on his business property, visited with friends, volunteered at community events, and hunted and fished. In addition, Thomas maintained a Valdez cell phone number and bank account, and he voted in state and local elections in Valdez (either in person or by absentee ballot).
In 2007, the State charged Thomas with violating several hunting laws. All of these charges were based on the allegation that Thomas falsely claimed to be an Alaska resident for hunting purposes following his departure for Michigan in 1999. Thomas was found guilty at a bench trial before District Court Judge Daniel Schally.
AS 16.05.420(a) (false statements in hunting and sportfish license and permit applications); AS 16.05.340(a)(15) (failure to use locking tags required for nonresident big game hunters); and 5 AAC 92.140 (possession of game taken in violation of other hunting laws).
Judge Schally issued his decision in a ten-page written "Order Verdict." In his decision, Judge Schally ruled that Thomas's residency status was governed by the test set forth in AS 16.05.415.
Under subsection (a) of this statute, a person becomes a "resident" of Alaska for purposes of the hunting laws if (1) he is "physically present in [this] state with the intent to remain in the state indefinitely and to make a home in [this] state"; (2) he has maintained a domicile in Alaska for the twelve months preceding their application for the hunting license; (3) he is not claiming residency in any other state or country; and (4) he is not obtaining benefits under a claim of residency in another state or country.
Under subsection (b) of this statute, a person who has established resident status under the test set forth in subsection (a) remains a resident of Alaska during any absence from the state — unless, during the absence, the person "performs an act, or is absent under circumstances, that are inconsistent with the intent required under [subsection] (a) of [the statute]."
As we explained earlier, the intent required by subsection (a) is "the intent to remain in [Alaska] indefinitely and to make a home in [this] state." The primary issue litigated at Thomas's trial was the question of whether, because of Thomas's time and activities in Michigan, he was "absent under circumstances . . . inconsistent with [this] intent."
Judge Schally noted that Thomas continued to own business property in Valdez (the building leased to the Coast Guard), but that Thomas spent most of his time in Michigan, where he owned both residential and commercial property. In addition, Thomas maintained a mailing address in Michigan and ran a business there.
Judge Schally noted that Thomas's claim of Alaska residency was seemingly supported by the fact that he buys non-resident hunting and fishing licenses in Michigan, that he does not claim a homestead property tax exemption for his residence in Michigan, and that he continues to list a post office box in Valdez as his mailing address on his federal and Michigan state tax returns.
However, Judge Schally further noted that Thomas did not "live" in Alaska as that phrase is commonly understood. Both Thomas's son and father live in Michigan; throughout most of the year, Thomas stays in Michigan and helps his father, who has had medical problems. Thomas has made improvements to a hundred-acre parcel he and his father own in Michigan, and he plans to keep that property and leave it to his son upon his death. Thomas had been living in a trailer in Michigan but, at the time of his trial, he was building a house there.
Thomas maintained his own post office box in Valdez for several years after moving to Michigan, but subsequently had his mail delivered to a friend's post office box, and the friend would then forward it to Thomas in Michigan. Thomas did not maintain a personal residence in Alaska. He owns a building in Valdez, and that building has an apartment in it, but the building has been leased out since approximately 1995 (that is, long before Thomas left Alaska). When Thomas is in Alaska, he stays with friends. And the motor vehicles that Thomas has registered in Alaska are physically located in Michigan.
Based on these facts, Judge Schally concluded that Thomas was no longer a resident of Alaska under the test codified in AS 16.05.415(a) and (b):
In most of the calendar years since [Thomas] left for Michigan in 1999 Thomas has spent very little time in Alaska. . . . The fact that Thomas lives in Michigan demonstrates [that] he has established residency there and maintains his home there whether he claims it or not.
. . .
Visiting Alaska on an annual basis does not make Thomas an Alaska resident. Owning real property in Alaska [or] [s]toring goods . . . in Alaska does not make Thomas an Alaska resident. . . . None of Thomas's remaining ties with Alaska, taken alone or in combination, makes him an Alaska resident for purposes of our hunting and fishing laws and regulations.
In other words, Judge Schally found that Thomas's act of living in Michigan for most of the year, coupled with the fact that he maintained his physical residence there ( i.e., his house), and that he conducted his main business and family activities there, constituted circumstances that were inconsistent with the intent required by AS 16.05.415(a): inconsistent with "the intent to remain in [Alaska] indefinitely and to make a home in [this] state." Judge Schally accordingly concluded that Thomas had lost his Alaska residency for hunting purposes.
Analysis of the trial court's decision
On appeal, Thomas argues that Judge Schally applied an incorrect legal standard when he assessed whether the State had proved that he was not an Alaska resident for hunting purposes. Thomas asserts that, instead of following the statutory test, Judge Schally relied on whether an average person would say that Thomas "lived" in Alaska.
It is true that, in his written order and verdict, Judge Schally noted that Thomas did not "live" in Alaska as that phrase is commonly understood. However, this comment appears once in a ten-page decision, and it must be taken in context. Judge Schally's decision, read as a whole, clearly shows that he decided the issue of Thomas's residency using the statutory test codified in AS 16.05.415(a) and (b).
Thomas also argues that the test codified in subsection (b) — whether a person "performs an act, or is absent under circumstances, that are inconsistent with the intent required under [subsection] (a)" — must be read to mean that, once a person establishes Alaska residency under the test codified in subsection (a) of the statute, that person remains an Alaska resident through any ensuing absence unless they affirmatively establish a new "domicile" in another state or country.
Thomas argues that this construction of section 415(b) is necessary so that the definition of residency contained in AS 16.05.415 will conform to the differing definition of residency contained in AS 16.05.940(27). But conformity between these two statutes does not appear to be required. The definitions in section 940 apply throughout chapters 05, 10, 20, 25, 30, 35, and 40 of Title 16. In contrast, the definition of residency contained in AS 16.05.415 is specifically limited to Article 3 of Title 16, the article dealing with "Licensing of Sport Fishing and Hunting" — AS 16.05.330 through AS 16.05.430.
Under normal rules of statutory construction, we are to presume that when the legislature enacts a special definition of "residency" to be applied in a particular portion of the statutes, that special definition takes precedence over the general definition of "residency" that applies throughout the statutes. Thomas has presented us with no legislative history or other authority suggesting that it would be inappropriate to follow this normal rule of construction. Accordingly, we hold that Judge Schally correctly applied the definition of residency contained in AS 16.05.415 when he decided Thomas's case.
See City of Cordova v. State, Alaska Dep't of Health Social Servs., Medicaid Rate Comm'n, 789 P.2d 346, 352 (Alaska 1990) ("It is a maxim of construction that specific statutes should be given precedence over more general ones.").
Thomas's remaining argument is that, even if Judge Schally applied the correct legal test, the judge was still "clearly erroneous" when he found that the facts of Thomas's case proved that he lost his Alaska residency status because of the character of his absence from Alaska (or, "presence in Michigan").
"Clearly erroneous" is not the correct standard of review in this case. Because Thomas is challenging the verdict — the finding of ultimate fact — rendered by a judge in a bench trial, the proper standard of review is the "substantial evidence" test.
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980); Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
The difference is that, under the "clearly erroneous" test, an appellate court is permitted to overturn a factual finding made by a trial court, even though there is evidence to support the finding, if a review of the entire record leaves the appellate court with "a definite and firm conviction . . . that a mistake has been made." Under the "substantial evidence" test, on the other hand, an appellate court must uphold a trial judge's verdict if, viewing the evidence in the light most favorable to the trial judge's decision, "the record contains evidence that a reasonable mind might accept as adequate to support the challenged conclusion." This is the equivalent of the test that we would apply when reviewing the sufficiency of the evidence to support a jury's verdict.
Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981); Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).
Y.J., 130 P.3d at 957 (internal punctuation omitted).
Thomas correctly notes that some of the evidence in this case supported his position that he retained his Alaska residency even though he maintained his primary physical residence in Michigan and spent most of his time there. But Thomas's argument on this point ultimately rests on viewing the evidence in the light most favorable to him. As explained in the preceding paragraph, we are obliged to view the evidence in the light most favorable to Judge Schally's verdict. We are then to decide whether, viewing the evidence in this light, a reasonable fact finder could have reached the conclusion that Judge Schally did — the conclusion that the circumstances of Thomas's lengthy absences from Alaska were inconsistent with his purported intent to remain in Alaska indefinitely and to make a home in Alaska.
We have reviewed the evidence presented in the trial court, and we conclude that, viewing that evidence in the light most favorable to Judge Schally's verdict, a reasonable fact-finder could conclude that the State met its burden of proof on the issue of Thomas's residency. Accordingly, we uphold the verdict.
Conclusion
The judgment of the district court is AFFIRMED.