concurring.
I write separately for two purposes: to explain my analysis of the elements of the crime of resisting arrest, and to explain my conclusion that the State's evidence against Eide was not sufficient to establish those elements.
The resisting arrest statute, AS 11.56.700(a), sets forth a culpable mental state and an actus reus that the State must prove. The culpable mental state is "the intent of preventing [an] officer from making [an] arrest". The actus reus is "resist[ing] ... or interfer[ing] with the arrest" by one of three methods:
(1) the use or threat of force;
(2) the commission of eriminal mischief in any degree; or
(8) the use of any other means that creates a substantial risk of physical injury to any person.
Eide was charged under subsection (3) of this statute. In other words, the State alleged that Eide resisted or interfered with an arrest (his own) by employing a means that created a substantial risk of physical injury to one or more people.
To prove this actus reus, the State relied on evidence that Eide pulled his wrist from the officer's grasp and then lay on the floor with his arms and legs tucked underneath him, refusing to get up and be handcuffed.
The State argues that Eide's conduct created a substantial risk of injury (either to himself or to the arresting officer)-because the officer reasonably feared that if he tried to lift Eide from the floor to effect the arrest, Eide might physically resist the officer's efforts, and someone might get hurt.
Based both on the wording of the statute and on the accompanying commentary, I conclude that subsection (8) of the statute was not intended to be read in this fashion. In particular, subsection (8) does not authorize a conviction based on the possibility or prediction that an arrestee might later violate subsection (1) by using force to resist or impede an arrest. Rather, subsection (8) requires proof that the defendant was then and there engaged in conduct that actively threatened injury to himself or some other person.
Both the legislature's official commentary to AS 11.56.700 and the Criminal Code Sub-commission's commentary to the earlier draft statute expressly state that the offense of *503resisting arrest was not intended to encompass "mere non-submission" to an arrest. Here is the pertinent portion of the official commentary, found in 1978 Senate Journal Supp. No. 47 (June 12), page 85:
[This statute] prohibits resisting or interfering with an arrest by the use of force.... A person also violates the statute by committing any degree of eriminal mischief ([eg.], tampering with the officer's squad car) or by doing any act that creates a "substantial risk of physical injury" ({e.g.1, fleeing in an automobile at high speeds through a residential area). [Butl[mlere non-submission to an arrest does not reach the level of resisting or interfering with [an] arrest [prohibited by this statute].
Based on this commentary, I conclude that Eide's act of lying on the floor and assuming a "turtle" posture (4.e., placing his arms and legs underneath him, out of the officer's immediate reach) is not the kind of conduct that the legislature intended to punish.
Eide's act of curling up on the floor was not a use of foree, nor was it criminal mischief. The State argues that Eide's conduct created a risk of injury-but only in the sense that the officer reasonably suspected that Eide might begin to use force against the officer if the officer continued his efforts to take Eide into custody. The legislative commentary to AS 11.56.700(a)(8) shows that this is not the kind of conduct that the legislature was contemplating when they enacted this "substantial risk of physical injury" provision of the statute. The legislature's example of conduct that would violate subsection (3)-"fleeing in an automobile at high speeds through a residential area"-shows that the legislature was thinking of conduct that actively and immediately threatens people's safety.
Eide's act of curling up on the floor did not create such a risk. Rather, Eide's conduct fell within the range of passive resistance that the legislature called "mere non-submission"-conduct that the legislature did not intend to punish.
It was not enough for the State to prove that the officer reasonably suspected that, if he pursued further efforts to remove Eide from the floor and take him into custody, this would prompt Eide to begin engaging in conduct that created a danger of physical harm. Unless and until Eide actually began to engage in such conduct, he did not commit the crime of resisting arrest as defined in subsection (8) of the statute.
The State has one more potential argument. As the State points out in its brief, Eide did not merely curl up on the floor. Eide also pulled the sleeping bag over his body and, when the officer attempted to grab Eide's wrist (so that he could handeuff him), Eide yanked his wrist away and tucked his hands underneath his body.
It could be argued that these actions constituted the use of force to impede the arrest-and, thus, a violation of subsection (1) of the statute. However, the State does not make this argument. Rather, the State argues that these actions, too, constituted a violation of subsection (8)-because, again, they suggested that any further efforts to take Eide into custody would be met with more forcible resistance.
Both of these arguments-ie., the arguments that Eide's conduct violated either subsection (1) or subsection (8) of the statute-are answered in the Criminal Code Subcommission's commentary to the draft statute, TD 11.56.700. This commentary (found in Part 4 of the Tentative Draft of our criminal code) mirrors the later legislative commentary by declaring that an act of "mere non-submission" is not included within the definition of the crime. The draft commentary then adds an explanatory quote from Hawaii's commentary to its corresponding statute:
Mere non-submission to an arrest does not reach the level of resisting or interfering with [an] arrest [as defined in this statute]. As noted in the Commentary to the Hawaii Penal Code:
One who runs away from an arresting officer or who makes an effort to shake off the officer's detaining arm might be said to obstruct the officer physically, but this type of evasion or minor seuf-fling is not unusual in an arrest, nor would it be desirable to make it a erimi-*504nal offense.... In [such] case[s,] the proper social course is to authorize police pursuit and [the] use of reasonable force to effect the arrest.
Alaska Criminal Code Revision, Tentative Draft, Part 4 (1977), page 74, Commentary to TD 11.56.700.
Eide's acts of covering himself with a sleeping bag and pulling his wrist away from the officer's grasp are the types of "evasion or minor scuffling" that, according to the commentary, do not constitute the crime of resisting arrest.
It may well be that, given Eide's actions, the officer reasonably concluded that Eide might engage in future violent resistance if the officer continued his efforts to take Eide into custody. And, as the commentary to the draft statute suggests, the reasonableness of the officer's prediction of potential violence would be significant if, for example, the issue being litigated was whether the officer was justified in using the stun gun on Eide.
But the issue in this case is whether the State proved that Hide resisted arrest as defined in AS 11.56.700(a). Based on the wording of this statute, and based on the descriptions of the intended scope of this statute in both the official legislative commentary and the Criminal Code Subcommission's commentary to the draft statute, I conclude that Eide's conduct (even viewed in the light most favorable to the State) does not fall within the conduct prohibited by AS 11.56.700.
Accordingly, I agree with my colleagues that Eide was entitled to a judgement of acquittal on the charge of resisting arrest.