concurring.
By accurately reciting the legislative history of AS 11.46.360 — 365, Judge Coats’s opinion points out the problems with the State’s position in this appeal.
The State argues that if a person takes lawful temporary possession of a vehicle under an oral agreement (in this case, an informal agreement between friends) and then the person knowingly retains the vehicle for any length of tíme (no matter how short) past the agreed-upon hour for returning the vehicle, the person commits a felony — the crime of first-degree vehicle theft. The State asserts that such conduct falls within the statutory prohibition against “driving] ... or tak[ing]” the vehicle of another when one has “no ... reasonable ground to believe [that one] has ... a right [to do so]”. AS 11.46.360(a)(1).
The problem with the State’s position is that, in AS 11.46.365(a)(2), the legislature has declared that when a person initially takes temporary possession of a vehicle under a written agreement (that is, a more formal agreement) and then knowingly retains the vehicle “for so long a period beyond the time specified as to [constitute] an unreasonable deviation from the agreement”, the person commits a misdemeanor — the crime of second-degree vehicle theft. The legislature’s enactment of AS 11.46.365(a)(2) undercuts the State’s argument in two ways.
First, the presence of section 365(a)(2) suggests that the State can not be correct in its reading of section 360(a). The State asserts that the phrase used in 360(a), “drives ... or takes [a vehicle]”, was intended to cover the conduct of any person who initially takes temporary possession of a vehicle lawfully but then fails to return the vehicle as promised. If this were true, then the legislature would seemingly have no need to enact AS 11.46.365(a)(2), a section that deals specifically with people who take temporary possession of a vehicle under a written agreement — and that imposes a lesser punishment for their crime. The legislature’s enactment of this second statute strongly suggests that the words “drives” and “takes” in section 360(a) were intended to refer to the defendant’s initial act of driving or taking the vehicle of another. Reading the two statutes (sections 360 and 365) in combination, it appears that the crime of first-degree vehicle theft requires proof that the defendant’s initial taking of the vehicle was trespassory.
But even if this were not so — that is, even if section 360(a) could be interpreted to cover people who initially take possession of a vehicle with the owner’s permission but then exceed the scope of the granted permission— this still leaves the State in the difficult position of arguing (1) that the legislature wanted to inflict felony punishment on people who take possession of a vehicle under an informal, oral agreement between friends and then fail to return the vehicle by the very minute promised, but (2) the legislature wanted to inflict only misdemeanor punishment on people who take possession of a vehicle under a written agreement (most commonly, a commercial rental agreement) and then retain the vehicle “for so long a period beyond the time specified as to render the retention or possession of the vehicle an unreasonable deviation from the agreement”. This simply does not make sense.
The drafters of the Tentative Draft proposed to punish, under a single section of the criminal code, all persons who took temporary possession of a vehicle under any agree*999ment — either oral or written — and then failed to return the vehicle for so long a period of time as to constitute an unreasonable deviation from the terms of the agreement. The legislature amended this proposal by inserting the adjective “written” to modify the noun “agreement”. The State would have us infer that the legislature, by this amendment, indicated a desire to increase the punishment for those who violate, even if only slightly, an oral agreement for temporary possession of a motor vehicle, and a concomitant desire to reduce the punishment for those who violate written agreements — indeed, a desire not to punish these people at all if their deviation from the written agreement was de minimis. Given the importance that our society has traditionally accorded to written agreements, the State’s position must be rejected.
For these reasons, I join in the majority’s decision.