State v. Jung Ho Yi

85 P.3d 469, 2004 Alas. App. LEXIS 40, 2004 WL 316981
CourtCourt of Appeals of Alaska
DecidedFebruary 20, 2004
DocketA-8430
StatusPublished
Cited by1 cases

This text of 85 P.3d 469 (State v. Jung Ho Yi) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jung Ho Yi, 85 P.3d 469, 2004 Alas. App. LEXIS 40, 2004 WL 316981 (Ala. Ct. App. 2004).

Opinions

OPINION

COATS, Chief Judge.

It is a misdemeanor offense to purchase, sell, or barter bear parts.1 Bethel, Alaska, is a “damp” community where it is legal to possess alcohol for one’s personal use, but it is a felony offense to buy, sell, or trade alcohol.2 The defendant in this case, Jung Ho Yi, traded two bottles of Crown Royal Whiskey for a bear gallbladder which was offered by undercover Alaska State Trooper Gary Paeolt. Approximately three weeks later, Yi engaged in another similar transaction with Trooper Paeolt. When the State charged Yi with these criminal offenses, Yi defended on the ground of entrapment. Yi contended that, although he knew that selling of gallbladders or whiskey was illegal, he reasonably believed, based in part on Trooper Pacolt’s representations, that a trade (or exchange of gifts) was lawful. Superior Court Judge Dale O. Curda found that Yi established the defense of entrapment. The State petitioned for review and we granted the petition. We now reverse Judge Curda’s ruling.

Factual and procedural background

During January of 2002, Trooper Paeolt was assigned to spend three days in Bethel as part of an undercover operation to apprehend persons engaged in illegal buying and selling of bear gallbladders. The operation was set up in response to information, reported by the Alaska Department of Fish and Wildlife, that at least one restaurant in town had bought or bartered bear gallbladders in violation of the law. During this operation Trooper Paeolt attempted to sell or barter a bear gallbladder in at least six different restaurants in Bethel.

On January 18, Trooper Paeolt and Officer Betty Williams, from the Quinhagak Police Department, entered the Front Street Cafe dressed as civilians. This restaurant was the first that they selected. The two officers were the only patrons in the restaurant at the time. The two officers ordered dinner. Trooper Paeolt then noticed a man, later identified as Yi, who sat down to eat at a nearby table. Yi appeared to be an employee of the restaurant as he frequently went back into the kitchen.

Trooper Paeolt then engaged Yi in some small talk for about five or ten minutes. Most of the conversation revolved around the fact that both men were from Anchorage. At this point Trooper Paeolt removed a bear gallbladder from his shirt pocket and asked Yi if he was interested in buying. Yi responded that he did not want to buy it and that it was illegal. Trooper Paeolt said “no problem,” and put the gallbladder back in his pocket. Trooper Paeolt then asked Yi if he knew where he could get some alcohol.

It is only at this point that Trooper Pa-colt’s and Yi’s testimonies differ. According to Trooper Paeolt, Yi then asked to see the gallbladder again. And, after Paeolt handed it to him, Yi asked Paeolt if he was interested in trading the gallbladder for some alcohol. Trooper Paeolt replied that a trade would “be fine.” Trooper Paeolt testified that he never indicated to Yi that such a trade was legal. According to Yi, after Paeolt asked where to get alcohol, he only told Paeolt that he had some for his own personal use. Yi testified that Trooper Paeolt first brought up the idea of trading alcohol for the gallbladder. Yi admitted to readily agreeing to this transaction, which he characterized as a gift [471]*471exchange. Yi also testified that he got the impression from Trooper Pacolt that such an exchange would be legal. Yi does not claim that he knew Trooper Pacolt was a police officer at that time. Officer Williams also testified but her testimony was not helpful in clearing up these conflicting accounts.

From this point on, the facts are uncontested. Yi had an employee of the cafe bring Trooper Pacolt a paper bag containing two bottles of Crown Royal whiskey. Yi then proceeded to staple the bag shut. Yi also said that he would pay for Trooper Pacolt’s dinner as part of the deal.

Before Trooper Pacolt left the cafe, he told Yi that he might have more gallbladders in the future and asked if Yi might be interested. Yi said no, but stated that he might know some people who would be.

On February 12, Trooper Pacolt returned to the Front Street Cafe alone, this time wearing a tape-recording device. Trooper Pacolt had applied for and received a Glass3 warrant in order to record his conversation with Yi. Trooper Pacolt had another bear gallbladder with him at this time. Pacolt sat down to have dinner. Yi came out, talked with him, and took his order. Trooper Pa-colt then told Yi that he had another gallbladder and showed it to him. He then asked Yi if he was interested in trading again “like last time.” Yi indicated that he was interested, this time trading three bottles of vodka for the gallbladder. Yi again paid for Trooper Paeolt’s dinner..

The State indicted Yi on two felony counts of sale of liquor without a license4 and charged him by information with two misdemeanor counts for purchasing parts of a big game animal.5

Yi filed a motion to dismiss the indictment on the ground that he had been entrapped by the police. In an evidentiary hearing on the motion conducted by Judge Curda, Yi, Trooper Pacolt, and Officer Williams testified. Following the hearing, Judge Curda ruled that Yi had established the defense of entrapment.

Judge Curda specifically did not resolve the conflict in the testimony about whether it was Trooper Pacolt or Yi who initiated the plan to trade the bear gallbladder for alcohol. He concluded that it was unnecessary to resolve this factual conflict. Rather, Judge Curda concluded that, “from an objective point of view, a reasonable person would not have believed the trade of alcohol for bear gallbladders was illegal.” He pointed out that Yi initially refused to purchase the gallbladder. Judge Curda noted that Trooper Pacolt was the person who originally brought up the subject of obtaining alcohol. He concluded that Yi was not a bootlegger and that, if Trooper Pacolt had asked to purchase the alcohol, Yi would have refused. Judge Curda concluded that Yi only committed the offense because Yi believed that the transaction was legal: “[W]hile Yi acknowledges [that] he was aware [that] selling or buying either alcohol or the bear gallbladder would be illegal, he believed [that] an even trade would not be illegal. The court finds reasonable people in the State of Alaska, and specifically in Bethel, would agree.” Judge Curda concluded that, because of Trooper Pacolt’s persistence in pursuing Yi, and because of Yi’s confusion over the legality of making a trade, Trooper Pacolt’s conduct fell “below an acceptable standard for the fair and honorable administration of justice.”

The law of entrapment

Alaska’s entrapment statute is codified at AS 11.81.450:

In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual [472]*472course of unlawful conduct for gain or profit does not constitute entrapment.

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Related

State v. Jung Ho Yi
85 P.3d 469 (Court of Appeals of Alaska, 2004)

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Bluebook (online)
85 P.3d 469, 2004 Alas. App. LEXIS 40, 2004 WL 316981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jung-ho-yi-alaskactapp-2004.