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THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD G. CHAMBERS, )
)
Appellant, ) Court of
Appeals No. A-3221
) Trial Court No. 3AN-S88-4801CR
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1132 - May 24, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Elaine M. Andrews, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. David Mannheimer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Greene, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Ronald G. Chambers appeals his conviction for
misconduct involving a controlled substance in the third degree.
AS 11.71.030. Chambers argues that Acting Superior Court Judge
Elaine M. Andrews erred in denying his motion for a judgment of
acquittal. We affirm.
In the early morning of July 6, 1988, Chambers
registered at an Anchorage motel. Later in the day, suspecting
that drug activity was taking place in Chambers' room, a hotel
clerk notified the police, who obtained a warrant and searched
the room. They discovered a quantity of cocaine, some baking
soda, and other paraphernalia that led them to believe that
Chambers was converting cocaine into "crack" cocaine.
Chambers was indicted for misconduct involving a
controlled substance in the third degree under two theories:
that he possessed cocaine with the intent to deliver it, or,
alternatively, that he possessed cocaine with the intent to
manufacture crack.1
At trial, the evidence established that the powdery
substance in Chambers' room was cocaine hydrochloride, which is a
combination of the natural extract of the coca plant and
hydrochloric acid. Cocaine hydrochloride is normally referred to
simply as cocaine, and this is the form in which cocaine is most
commonly used and distributed. In this form, cocaine is water
soluble and can readily be absorbed as a powder by the mucous
membrane of the nose.
According to the evidence, crack cocaine, in turn, is
made by neutralizing cocaine hydrochloride, a process that
returns the cocaine to its original form. This is commonly done
by adding a base, such as sodium bicarbonate (baking soda) to
cocaine hydrochloride and heating the mixture. Crack cocaine is
no longer water soluble and thus cannot be absorbed in the nasal
passages. However, the substance has a lower melting temperature
than cocaine hydrochloride and can be easily heated to the point
of vaporization, allowing it to be inhaled directly into the
lungs as a gas. Throughout the process of converting organic
cocaine to cocaine hydrochloride and back to crack cocaine, the
basic cocaine molecule does not change.
At the close of the evidence at trial, Chambers moved
for a judgment of acquittal as to the allegation that he
possessed cocaine with intent to manufacture crack. Chambers
argued, among other things, that converting cocaine into crack
does not amount to the "manufacture" of a controlled substance
under Alaska law. The trial court denied Chambers' motion and
submitted the case to the jury with special verdict forms
covering the separate theories of prosecution. The jury returned
verdicts acquitting Chambers of possessing cocaine with intent to
distribute but convicting of possession with intent to
manufacture.
On appeal, Chambers contends that the trial court erred
in denying his motion for a judgment of acquittal. He argues
that, since the undisputed evidence at trial established that the
cocaine molecule remains unchanged, the process of converting
cocaine hydrochloride to crack cocaine does not amount to
"manufacture" of a controlled substance.2
In response to Chambers' argument, the state
acknowledges that the cocaine molecule remains intact when
cocaine hydrochloride is converted to crack. The state
nonetheless contends that cocaine hydrochloride and crack are
different chemical compounds and that the process of making crack
from cocaine involves a chemical alteration. In the state's
view, Alaska's statutory definition of manufacturing is
sufficiently broad to cover this process. Alaska Statute
11.71.900(13)(A) states, in relevant part, that "manufacture"
means the production, preparation,
propagation, compounding, conversion,
growing, or processing of a controlled
substance, either directly or indirectly by
extraction from substances of natural origin,
or independently by means of chemical
synthesis, or by a combination of extraction
and chemical synthesis; however, the growing
of marijuana for personal use is not
manufacturing . . . .
Chambers replies that the statutory definition of
"manufacture" is not as broad as the state submits.
Specifically, Chambers focuses on the portion of AS
11.71.900(13)(A) that refers to "extraction from substances of
natural origin, or independently by means of chemical synthesis,
or by a combination of extraction and chemical synthesis . . . ."
From this language, Chambers concludes that, under AS
11.71.900(13)(A), "manufacture" can occur only when a process
involves "extraction from a substance of natural origin,"
"chemical synthesis," or a combination of the two.
Chambers insists that the process of converting cocaine
hydrochloride to crack cocaine does not fit these pigeonholes.
He notes that, because cocaine hydrochloride is not a natural
substance, making crack from cocaine hydrochloride does not
qualify as extraction from a substance of natural origin.
Chambers further claims that the process does not involve
chemical synthesis. Relying on Webster's Encyclopedia of
Dictionaries at 378 (New American Ed. 1978), Chambers defines
synthesis as the "uniting of elements to form a compound."
Chambers points out that no elements of a compound are united in
the process of making crack cocaine from cocaine hydrochloride.
Finally, Chambers contends that the conversion process cannot
amount to a combination of extraction and synthesis, because
neither is individually involved.
Chambers' analysis lacks merit for several reasons.
Initially, we note that Chambers' proposed definition of
"synthesis" appears narrower than that contained in some commonly
used dictionaries. For example, a different version of Webster's
than that relied on by Chambers defines synthesis as, "the
production of a chemical compound by the union of elements or
simpler compounds or by the degradation of a complex compound . .
. ." Webster's Third New International Dictionary of the English
Language at 2321 (1966). The same dictionary defines degradation
as a "change of a chemical compound to a less complex compound."
Id. at 594. Under these definitions, the process of converting
cocaine hydrochloride into crack qualifies as synthesis.
Even assuming Chambers' definition of synthesis were
not unduly narrow, Chambers misreads the statutory definition of
manufacturing. While Chambers construes the phrase "by
extraction from substances of natural origin, or independently by
means of chemical synthesis or by a combination of extraction and
chemical synthesis" as restricting all of the language in AS
11.71.900(13)(A) that precedes it, the grammatical structure of
the section as a whole does not support Chambers' interpretation
of this phrase.
Moreover, a comparison of Alaska's provision with the
statutes from which it derives indicates that the disputed phrase
was meant to be read as an independent clause. In relevant part,
Alaska's definition of "manufacture" is taken verbatim from
former Uniform Controlled Substances Act (U.C.S.A.) 101(m).
See Alaska State Legislature, Summary of Senate Judiciary
Committee Hearing of March 6, 1981, at 1. The U.C.S.A. was
intended to "create a coordinated and codified system of drug
control, similar to that utilized at the federal level . . . ."
Handbook of the National Conference of Commissioners on Uniform
State Laws at 224 (1970). In keeping with this intent, both
Alaska's definition of "manufacture" and the definition contained
in former U.C.S.A. 101(m) mirror the definition contained in
the Federal Controlled Substances Act, 21 U.S.C. 801(15)
(formerly 21 U.S.C. 801(14)).
The federal definition of "manufacture" differs from
the relevant portions of the Alaska and former U.C.S.A. versions
only in that it includes the word "or" after the word
"indirectly," defining "manufacture" as "the production,
preparation, propagation, compounding, or processing of a drug or
other substance, either directly or indirectly or by extraction
from substances of natural origin or independently by means of
chemical synthesis . . . ." Id. (emphasis added). This use of
the disjunctive "or" in the federal definition makes it apparent
that the statutory language following the disjunctive -- which is
the disputed language in this case -- was not meant to modify or
restrict the language that precedes the disjunctive.
There is no indication that the omission of the "or"
from former U.C.S.A. 101(m) or from the virtually identical
language of AS 11.71.900(13)(A) was intended to effect any
substantive alteration of the federal definition. To the
contrary, as we have noted, our legislature appears to have
intended to follow the federal law. Notably, the U.C.S.A.
definition of "manufacture" was amended in 1990 to restore the
originally omitted "or." See U.C.S.A. 101(13)(1990). We see
no basis for construing the pertinent portions of AS
11.71.900(13)(A) differently than the federal statute.
It is instructive that, under federal law, the
conversion of cocaine hydrochloride to crack appears to be
routinely prosecuted as manufacturing. While the precise issue
raised by Chambers in this case is apparently one of first
impression, convictions for manufacturing crack from cocaine have
been upheld on appeal in federal courts. See, e.g., United
States v. Thomas, 895 F.2d 1198 (8th Cir. 1990); United States v.
Houston, 892 F.2d 696 (8th Cir. 1989).
We conclude that sufficient evidence was presented to
allow reasonable jurors to find that the process of converting
cocaine hydrochloride into crack cocaine involved the direct
"production, preparation, propagation, compounding, conversion,
growing, or processing of a controlled substance . . . ." AS
11.71.900(13)(A). For this reason, the jury could properly find
that Chambers' possession of cocaine hydrochloride with intent to
convert it to crack cocaine amounted to possession with intent to
manufacture. The trial court did not err in denying Chambers'
motion for a judgment of acquittal.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. In pertinent part, AS 11.71.030 provides:
(a) Except as authorized in AS 17.30, a
person commits the crime of misconduct
involving a controlled substance in the third
degree if the person
(1) manufactures or delivers any amount
of a schedule IIA or IIIA controlled
substance or possesses any amount of a
schedule IIA or IIIA controlled substance
with intent to manufacture or deliver . . . .
2. At trial, Chambers also argued for a judgment of
acquittal on the theory that the Alaska legislature intended to
exempt manufacturing for personal consumption from the statutory
definition of "manufacture" of a controlled substance. Chambers
abandons this argument on appeal. It appears that the trial
court correctly rejected this argument. In adopting the
definition of "manufacture" currently contained in AS
11.71.900(13), the legislature specifically provided a personal
use exemption for the growing of marijuana but failed to exempt
any other form of manufacture on like grounds. The specific
exemption for marijuana is a compelling indication of legislative
intent to include manufacture for personal use within the ambit
of AS 11.71.900(13) as to all other controlled substances.
We note that Alaska's decision to limit the personal
use exemption to the growing of marijuana differs from the
Federal Controlled Substances Act, 21 U.S.C. 802(15) (Supp.
1990) (formerly 21 U.S.C. 802(14)), and the Uniform Controlled
Substances Act (U.C.S.A. 101(13) (Supp. 1991) (formerly
U.C.S.A. 101(m)), both of which generally exempt manufacture
for personal use from the definition of "manufacture" as to all
controlled substances. We recognize that this difference could
lead to problems of interpretation under Alaska law that would
not arise under the federal and U.C.S.A. counterparts.
Specifically, it is conceivable that, in some situations, the
actual ingestion of a controlled substance might technically
qualify as "manufacture" under Alaska law. The evidence in the
current case, however, presents no such problem. According to
the undisputed evidence, the process of converting cocaine into
crack was plainly distinct from any act of consumption.
