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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT ATKINSON, )
) Court of Appeals No. A-4376
Appellant, ) Trial Court No. 3KN-S91-120CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1337 - March 11, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Walter Share, Seattle, and
Robert Merle Cowan, Kenai, for Appellant.
John A. Scukanec, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Robert M. Atkinson was charged with two counts of
misconduct involving a controlled substance in the fourth degree.
Atkinson was convicted by a jury of both charges. He now
appeals. On appeal, Atkinson argues that the superior court
erred in failing to suppress evidence seized during a search
conducted pursuant to an invalid search warrant, in refusing to
disclose the
juvenile records of the informant whose statements led to the
issuance of the warrant, in declining to reopen the evidentiary
hearing on Atkinson's motion to suppress in order to allow
examination of the informant, in admitting evidence at trial
regarding the aggregate weight of marijuana seized from
Atkinson's residence, and in refusing to give a lesser-included
offense instruction on Count I of the indictment.
FACTS
On December 7, 1990, Paul Boas, Sr., called the Alaska
State Trooper station in Seward and reported to Trooper Bill D.
Tyler that he had found marijuana in the bedroom closet of his
fifteen-year-old son, P.J. Tyler interviewed Boas and P.J. at
the Boas residence approximately an hour later. Tyler spoke
first with Boas and then with P.J. in Boas' presence. Tyler tape
recorded his interviews.
Boas told the trooper that P.J. had brought home some
"very green" marijuana, which had evidently been freshly
harvested and had not yet been dried. Boas gave the marijuana to
Tyler.
P.J. acknowledged bringing the marijuana home. He said
the marijuana came from a house at Mile 23 of the Seward Highway
-- approximately one-quarter mile from his own house. P.J.
admitted entering the house through the basement window on
December 5 to steal the marijuana. He said he saw twenty to
thirty medium size plants growing in one basement room; four or
five very large plants and numerous small plants grew in another.
There was also an extensive lighting system. P.J. did not go
upstairs.
P.J. further admitted stealing marijuana from this same
residence on another occasion during the previous two months. On
the previous occasion the marijuana had been growing in a shed
that was adjacent to the house. The plants had apparently been
moved into the basement due to the cold weather.
P.J. also drew Tyler a map depicting the location of
the house. P.J. said he thought the house belonged to Atkinson,
but that Atkinson was not living in it at that time. Someone
else, whose name P.J. did not know, was currently staying there.
Upon concluding his interviews with Boas and P.J.,
Tyler showed P.J.'s map to Tom Clark, an acquaintance of Tyler's
who had lived in the area for a number of years. Although the
map had no names written on it, Clark immediately identified the
location P.J. had marked as Atkinson's residence. Clark further
told Tyler that Atkinson might not be in town at the time and
that a man named Sam might be taking care of the house in
Atkinson's absence. Through a subsequent check of utility
records, Tyler confirmed that utilities for the house were listed
in the name of Robert Atkinson.
Several days after his interview with P.J., Tyler,
relying on the foregoing information, applied to Magistrate
George Peck for a warrant to search Atkinson's house. Magistrate
Peck issued the warrant, finding the information Tyler had
received from P.J. to be sufficiently corroborated to establish
probable cause. In deciding on the warrant, Magistrate Peck
expressly indicated that, for purposes of determining probable
cause, he had treated P.J. as a criminal informant whose
statements were subject to corroboration under the Aguilar-
Spinelli1 test, rather than as a citizen informant whose
statements were presumptively credible. The search
warrant was executed on December 11, 1990. During the search, the
troopers found numerous marijuana plants in Atkinson's basement,
as well as equipment for an extensive marijuana growing
operation. Atkinson was home at the time of the search and made
a number of inculpatory statements.
Atkinson was subsequently indicted on two counts of
misconduct involving a controlled substance in the fourth degree:
Count I charged him with manufacturing or possessing with intent
to deliver one ounce or more of marijuana, in violation of AS
11.71.040(a)(2); Count II charged him with simple possession of
one pound or more of marijuana, in violation of AS
11.71.040(a)(3)(F).2 Prior to and during trial, Atkinson made
various motions relating to the admissibility of the marijuana
seized from his home. He also moved to exclude trial testimony
concerning the aggregate weight of the marijuana. Finally,
Atkinson requested a lesser-included offense instruction as to
Count I. The trial court denied these motions, and, following
conviction, Atkinson appealed.
DISCUSSION
1. Aguilar-Spinelli
Atkinson argues that Tyler's testimony before the
magistrate does not withstand scrutiny under the Aguilar-Spinelli
test. Specifically, Atkinson contends that Trooper Tyler did not
provide sufficient independent corroboration to establish P.J.'s
veracity.
The Aguilar-Spinelli test continues in effect in Alaska
for purposes of determining the validity of a warrant based on
informant hearsay. State v. Jones, 706 P.2d 317, 322 (Alaska
1985); Kvasnikoff v. State, 804 P.2d 1302, 1306-07 (Alaska App.
1991). This two-prong test requires that the magistrate be
presented with evidence sufficient to make an independent
determination as to an informant's basis of knowledge (that the
informant's statement is in fact based on first-hand knowledge)
and veracity (that the information related by the informant is
credible). State v. Bianchi, 761 P.2d 127, 130 (Alaska App.
1988).
Here, P.J. made it clear that the information he gave
Tyler concerning the marijuana at Atkinson's house was based on
his personal observations. The first prong of Aguilar-Spinelli
is plainly satisfied. The second prong, veracity, may be
satisfied by evidence of the informant's past reliability or by
proof of circumstances establishing the credibility of the
informant's current statement. Here, no evidence of P.J.'s past
reliability was offered to the magistrate. However, there was
ample basis for concluding that P.J.'s statement to Tyler was
credible.
The most common means of establishing the credibility
of a particular statement is through "independent police
corroboration of detailed facts in the informant's story."
Elerson v. State, 732 P.2d 192, 194 (Alaska App. 1987) (quoting
Jones, 706 P.2d at 325 (citations omitted)). All that is
necessary is that the "probability of a lying or inaccurate
informer [be] . . . sufficiently reduced by corroborative facts
and observations." Elerson, 732 P.2d at 194 (quoting 1 Wayne R.
LaFave, Search and Seizure, 3.3(f), at 556-57 (1978)).
Corroboration of incrimi-nating facts is not required. Schmid v.
State, 615 P.2d 565, 576-77 (Alaska 1980); Elerson, 732 P.2d at
194; see also Clark v. State, 704 P.2d 799, 804 & n.4 (Alaska
App. 1985); 1 Wayne R. LaFave, Search and Seizure, 3.3(f), at
683 (2d ed. 1987).
In the present case, P.J.'s story that he had obtained
marijuana from Atkinson's house was corroborated in numerous
particulars. P.J. had in fact been caught possessing marijuana
by his father. The marijuana was "green," indicating that it had
only recently been harvested. P.J. had told essentially the same
story to both his father and Tyler. He had also drawn a map
specifying the location of Atkinson's house, which proved to be
accurate. P.J. had further provided information concerning the
occupants of the house. The information was confirmed by Tyler.
Tyler additionally confirmed that the utilities for the house
were in fact in Atkinson's name.
We need not decide whether these corroborating
circumstances would in themselves be sufficient to meet the
Aguilar-Spinelli test, for they did not stand alone. As the
magistrate properly determined, P.J.'s credibility was
additionally bolstered by the self-incriminating nature of his
statement. It is well settled that the credibility of an
informant's statement may be established when the statement is
against the informant's penal interest:
"What is needed is a showing that `the
informant's statements against his own penal
interest were closely related to the criminal
activity' for which probable cause to arrest
or search is being established . . . ." 1 W.
LaFave, Search and Seizure, 3.3(c) at 531
(1978). Once the appropriate nexus has been
established, the next "fundamental question
is whether the informant would have perceived
his remarks as highly incriminating."
Elerson, 732 P.2d at 194 (quoting LaFave, supra, at 531). See
also Bianchi, 761 P.2d at 130.
In the present case, Atkinson correctly observes that
P.J.'s willingness to admit possessing marijuana might not in
itself be sufficiently against his penal interests to establish
the truthfulness of his claim that the marijuana came from
Atkinson's house. P.J. had been caught in possession of
marijuana; he arguably had little to lose by admitting his
possession and much to gain by naming someone else who could also
be blamed. Courts have consistently been reluctant to recognize
such statements as admissions as against penal interest. Cf.
Shakespeare v. State, 827 P.2d 454, 458 (Alaska 1992); Jones, 706
P.2d at 325.
But P.J. did not merely admit possessing marijuana. In
recounting the story that implicated Atkinson, P.J. went far
beyond an admission of the misconduct for which he had already
been apprehended: he acknowledged engaging in a series of
burglaries at Atkinson's house that had as yet evidently gone
undetected. Whereas P.J.'s admission of possessing marijuana
arguably was not against his penal interest, his admission of
burglary plainly was. Because P.J.'s statement implicating
Atkinson was an integral part of his admission of burglary, the
trial court could properly find P.J.'s statement credible as a
declaration against penal interest. See Morrow v. State, 704
P.2d 226, 229 (Alaska App. 1985). See also 1 Wayne R. LaFave,
Search and Seizure, 3.3(c), at 648 & n.163 (2d ed. 1987).
Atkinson nonetheless attempts to discredit P.J.'s
statement, suggesting that Tyler impliedly promised to give P.J.
favorable treatment if he cooperated, thereby inducing P.J. to
implicate Atkinson. The record, however, does not support
Atkinson's claim that Tyler offered P.J. favorable treatment.
More significantly, even if Atkinson's claim were accepted it
would be unavailing, since the record establishes that P.J. first
admitted the Atkinson burglaries before Tyler's purported
inducement occurred.
Given that P.J.'s statement was against his penal
interest and was to a large extent corroborated, we conclude that
the information presented to Magistrate Peck was sufficient to
satisfy the Aguilar-Spinelli test and that the magistrate did not
abuse his discretion in finding probable cause to issue the
disputed search warrant.
2. Material misstatements and omissions
Atkinson next claims that the state made significant
misstatements to Magistrate Peck and omitted material information
in applying for the warrant. Atkinson claims that Tyler: 1)
falsely assured the magistrate that no deal had been made with
P.J.; 2) misled the magistrate by implying that P.J. would be
referred to the juvenile authorities when in fact he was not; 3)
failed to inform the magistrate that P.J. had a delinquency
petition pending against him for burglary and trespassing (a case
that Tyler himself had investigated); and 4) failed to fully
inform the magistrate about P.J.'s history of drug problems.
Atkinson could prevail on his claim only if the record
supported a finding that the purported misstatements or omissions
were intentional or reckless and that they were material. See
State v. Malkin, 722 P.2d 943, 946 (Alaska 1986). Assuming
arguendo that Tyler misstated or omitted information, the record
suggests that he did not do so recklessly or intentionally. More
significantly, the alleged misstatements and omissions could not
properly have been deemed material, either individually or
collectively: when the misstatements are deleted from the record
and the omissions added, ample evidence remains to support a
finding of probable cause.
In this regard, it is crucial to observe that the
supposed misstatements and omissions relate wholly to P.J.'s
credibility. They portray P.J. as a dishonest person who had
much to gain and little to lose in dealing with the troopers.
The collective effect of this information, however, is simply to
place P.J. in the shoes of a typical criminal informant. This
information might have had a significant bearing on the
determination of probable cause if the magistrate had assumed
that P.J. was a person whose testimony was presumptively
credible. But here, because Magistrate Peck treated P.J. as a
criminal informant whose statements were presumptively
incredible, the disputed misstatements and omissions could have
done nothing more than confirm what the magistrate had already
presumed to be true.
The trial court did not err in rejecting Atkinson's
claims of material misstatements and omissions.
3. Motions for discovery and to reopen proceedings
Atkinson moved numerous times for discovery of P.J.'s
juvenile records. He argued that the information was relevant to
establish P.J.'s motives for claiming that he found marijuana in
Atkinson's house and to show that he was seeking to curry favor
with the police. The court denied Atkinson's discovery motion
after conducting an in camera review of the records. Atkinson
also moved for a deposition of P.J. prior to the evidentiary
hearing on his motion to suppress. The court denied this motion.
Atkinson then moved to subpoena P.J. as a witness at the
evidentiary hearing. The court deferred ruling on this motion,
stating that, once it had heard testimony from the state's
witnesses at the suppression hearing, it would determine whether
P.J. should testify.
At the time of the evidentiary hearing, however, P.J.
was unavailable, and his whereabouts were evidently unknown. The
court took Atkinson's motion to suppress under advisement without
hearing from P.J. Prior to trial, Atkinson requested that the
evidentiary hearing on his motion to suppress be reopened,
claiming that P.J. had been located and was available. The court
declined to hear P.J.'s testimony and eventually denied the
motion to suppress.
The standard governing disclosure of confidential
information to the defendant in a criminal case is as follows:
[A]ny material evidence should be disclosed
to the defendant. Material evidence means
any evidence where "there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceedings would have been different. A
`reasonable probability' is a probability
sufficient to undermine confidence in the
outcome."
Sledge v. State, 763 P.2d 1364, 1369 (Alaska App. 1988)
(citations omitted).
A party's right to call witnesses at an evidentiary
hearing is subject to the trial court's discretion. See Davis v.
State, 766 P.2d 41, 43 (Alaska App. 1988). We have nevertheless
emphasized that "[The] discretion [to exclude witnesses] may be
exercised only after the court has made an adequate inquiry into
all of the surrounding circumstances, and failure of the trial
court to inquire into the circumstances constitutes error."
Smaker v. State, 695 P.2d 238, 240 (Alaska App. 1985)(quoting
State v. Bright, 623 P.2d 917, 923 (Kan. 1981)). We have
similarly emphasized that "[t]he right of a defendant to present
his own witnesses to establish a defense is a fundamental element
of due process of law." Smaker, 695 P.2d at 240 (citing
Washington v. Texas, 388 U.S. 14, 19 (1967)).
In the present case, however, Atkinson's arguments
concerning the court's denial of his requests to allow discovery
of P.J.'s juvenile files and to allow P.J. to testify on the
suppression issue are disposed of by our conclusion that the
various alleged misstatements and omissions pertaining to P.J.'s
lack of credibility had no material bearing on the issue of
probable cause. In ruling on the issue of probable cause,
Magistrate Peck started from the presumption that P.J. was not
credible. Applying the Aguilar-Spinelli criteria, the magistrate
nonetheless found sufficient circumstantial guarantees of
accuracy to justify the conclusion that P.J.'s statement to Tyler
was probably truthful.
The additional evidence concerning P.J.'s lack of
credibility that Atkinson hoped to gain through disclosure of
P.J.'s juvenile records and through calling P.J. to testify at
the suppression hearing could have added nothing significant on
the issue of probable cause, since it would only have confirmed
the presumption adopted by Magistrate Peck at the outset of the
warrant hearing, and since it would not have altered the validity
of the magistrate's Aguilar-Spinelli determination, which
depended on circumstantial guarantees of accuracy rather than on
representations as to P.J.'s character for truthfulness.
Indeed, even assuming P.J. had appeared at the
evidentiary hearing and had testified that his statement to Tyler
was wholly fabricated, this would not have negated the showing of
probable cause upon which the warrant was issued, since probable
cause depends on an objective assessment of the testimony
actually before the issuing court, not on an after-the-fact
evaluation of the actual truthfulness of that testimony.3 We
find no abuse of discretion in the court's denial of Atkinson's
discovery motions, or in its denial of his request to reopen the
evidentiary hearing to allow P.J. to testify.
4. Failure to record P.J.'s interview in its entirety
Tyler recorded the formal interviews he conducted with
P.J. and P.J.'s father on December 7, 1990. However, Tyler's
preliminary discussions with them were not recorded, and his
recorder was turned off at two points during P.J.'s interview.
On appeal, Atkinson urges us to extend the rule of Stephan v.
State, 711 P.2d 1156 (Alaska 1985) to this situation. In
Stephan, the supreme court held that
an unexcused failure to electronically record
a custodial interrogation conducted in a
place of detention violates a suspect's right
to due process, under the Alaska
Constitution, and . . . any statement thus
obtained is generally inadmissible.
Id. at 1158 (footnotes omitted).
Atkinson advances this argument for the first time on
appeal;4 accordingly, we review only for plain error. Moreau v.
State, 588 P.2d 275, 279-80 (Alaska 1978). Since P.J. was not in
custody or a place of detention when his interview occurred, the
underlying rationale of Stephan appears to have little bearing on
this case. Furthermore, Stephan was meant to protect the due
process interests of the person interviewed; the case never
suggested a need to record to protect the due process rights of
third parties. Finally, a finding of plain error in the context
of this case would be appropriate only in exceptional
circumstances. Moreau v. State, 588 P.2d 275, 280 (Alaska
1980)(court will ordinarily not treat search and seizure issues
as plain error). There are no exceptional circumstances here.
We find no merit to Atkinson's claim.
5. Evidence concerning aggregate weight of marijuana
The marijuana plants seized from Atkinson's residence
were dried and packaged by troopers at the trooper station in
Seward. At trial the evidence established that the troopers
separated "stems and stuff" from "the leaves and buds," and then
mailed the marijuana to the state crime lab in Anchorage to be
weighed and analyzed. Catherine E. Saft, a forensic chemist at
the crime lab, testified that she weighed the marijuana in the
condition in which it was received from the troopers. Saft
stated that the lab's policy in weighing marijuana was to remove
large stems that would contribute substantially to the weight.
Saft said she did not remove the stems and twigs from the
marijuana seized in Atkinson's residence, because they were
"relatively small."
Over Atkinson's objection, Saft was then allowed to
testify that the aggregate weight of the marijuana was
approximately three pounds. Atkinson contends that the court
erred in admitting Saft's testimony concerning aggregate weight,
because the marijuana she weighed included stems and twigs.
Atkinson relies on the statutory definition of marijuana, which
is set forth in AS 11.71.900(14):
"marijuana" means the seeds, and leaves,
buds, and flowers of the plant (genus)
Cannabis, whether growing or not; it does not
include the resin or oil extracted from any
part of the plants, or any compound,
manufacture, salt, derivative, mixture, or
preparation from the resin or oil, including
hashish, hashish oil, and natural or
synthetic tetrahydrocannabinol; it does not
include the stalks of the plant, fiber
produced from the stalks, oil or cake made
from the seeds of the plant, any other
compound, manufacture, salt, derivative,
mixture, or preparation of the stalks, fiber,
oil or cake, or the sterilized seed of the
plant which is incapable of germination[.]
In Gibson v. State, 719 P.2d 687, 690 (Alaska App.
1986), however, we made it clear that this statutory definition
is not controlling when the aggregate weight of marijuana is at
issue in a given case; rather, the issue is governed by AS
11.71.080, which provides:
For purposes of calculating the aggregate
weight of a live marijuana plant, the
aggregate weight shall be the weight of the
marijuana when reduced to its commonly used
form.
Under this provision, determining aggregate weight does not
require marijuana to be reduced to its purest, unadulterated
statutory form; aggregate weight must instead be based on the
"commonly used form."
In the present case, the jury was informed of the
statutory definitions of marijuana and aggregate weight, and it
heard abundant testimony concerning the form in which Atkinson's
marijuana was shipped and weighed. There was ample evidence to
permit the jury to determine whether the marijuana was in
"commonly used form" when it was weighed and whether its
aggregate weight in that form exceeded the statutory minimums.
Under these circumstances, the trial court did not
abuse its discretion in allowing Saft to testify concerning her
measurement of aggregate weight. Any uncertainty arising from
her testimony created factual questions for the jury, not grounds
for exclusion.
6. Lesser-included offense instruction on Count I
In Count I of the indictment, Atkinson was charged with
misconduct involving a controlled substance in the fourth degree
based on the theory that he manufactured or possessed with intent
to deliver one ounce or more of marijuana, in violation of AS
11.71.040(a)(2). Atkinson requested an instruction allowing the
jury to consider his guilt on a lesser-included offense, based on
simple possession,5 arguing that the jury might find him guilty
of possessing the marijuana in his home without also finding that
he manufactured or intended to sell or distribute it. The trial
court denied the lesser-included offense instruction.
On appeal, the parties dispute the propriety of the
trial court's ruling. In context, however, the issue appears to
be academic for reasons neither party addresses.
The two counts for which Atkinson was convicted
involved alternative theories of the same crime: misconduct
involving a controlled substance in the fourth degree. As we
have already indicated, Count I alleged Atkinson's guilt of the
offense for manufacturing (growing) or possessing with intent to
deliver one ounce or more of marijuana, AS 11.71.040(a)(2); Count
II alleged his guilt of the same offense for simple possession of
one pound or more, AS 11.71.040(a)(3)(F).
Neither in the indictment nor in its proof at trial did
the state attempt to differentiate the marijuana at issue in the
two counts; the charge in each count was evidently based on the
entirety of the marijuana seized from Atkinson's home during the
execution of the search warrant on December 11. The differing
amounts Atkinson was alleged to have possessed in Counts I and II
merely reflect the differing statutory minimums applicable under
the state's alternative theories of guilt.
Because Counts I and II alleged alternative statutory
theories of the same crime and were based on a single act of
possession involving the same marijuana, Atkinson could properly
be convicted of but one offense. Under these circumstances, the
trial court's entry of a judgment convicting him of two separate
counts was barred by double jeopardy and amounted to plain error.
Cf. People v. Brown, 523 P.2d 986, 988 (Colo. 1974)(separate
convictions for simple possession and possession with intent to
sell the same drugs barred by double jeopardy when they arise
from a single act of possession), overruled on other grounds,
Villafranca v. People, 573 P.2d 540 (Colo. 1978).6
Since Atkinson does not dispute the trial court's
instructions as to Count II, and since his conviction for two
counts was improper regardless of whether he was entitled to a
lesser-included offense instruction on Count I, we direct the
trial court, on remand, to enter an amended judgment reflecting
conviction only on Count II. Because amending the judgment in
this manner will render Atkinson's lesser-included offense
argument moot, we need consider it no further.
In all other respects, the judgment is AFFIRMED.
_______________________________
1. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
2. AS 11.71.040(a) provides, in relevant part:
(a) Except as authorized in AS 17.30, a
person commits the crime of misconduct involving a
controlled substance in the fourth degree if the person
. . . .
(2) manufactures or delivers, or possess-
es with the intent to manufacture or deliver,
one or more preparations, compounds,
mixtures, or substances of an aggregate
weight of one ounce or more containing a
schedule VIA controlled substance;
(3) possesses
. . . .
(F) one or more preparations, compounds,
mixtures, or substances of an aggregate
weight of one pound or more containing a
schedule VIA controlled substance[.]
3. Atkinson's theory of relevance and his offers of proof
before the trial court focused on his desire to explore P.J.'s
potential motives for fabricating an accusation against Atkinson,
particularly the possibility that P.J. might have construed
certain statements by Tyler as inducements to fabricate a story.
As we have already indicated, the record establishes that any
remarks by Tyler that P.J. might have construed as inducements to
cooperate occurred only after P.J.'s initial admission that he
obtained the marijuana by committing a burglary. In moving to
suppress, Atkinson did not allege, or offer any reasonable basis
to believe, that P.J.'s testimony or juvenile records might
establish an intentional deception of the magistrate by Tyler --
that is, Tyler's knowledge of and participation in a fabricated
accusation against Atkinson. Under the circumstances, the record
provides no realistic basis for concluding that P.J. could have
added anything of substance on the issue of probable cause apart
from information relating to his own lack of credibility.
On appeal, Atkinson does not contend that he was
deprived of the opportunity to call P.J. as a witness at trial.
It appears that, at trial, the only relevant information P.J.
might have
provided was that Atkinson did not appear to be residing at home
when P.J. stole the marijuana. The trial court instructed the
jury, without objection, that P.J. would have testified to this
effect had he been called.
4. Atkinson's claim that he argued the Stephan issue below
misrepresents the record. Atkinson merely cited Stephan below by
analogy to support his argument that the two gaps in the tape
recording rendered the entire interview suspect. At no time did
Atkinson argue that the tape recording requirement of Stephan was
applicable or was violated.
5. See AS 11.71.050(a)(3)(E) (defining simple possession
of eight ounces or more of marijuana as fifth-degree misconduct
involving a controlled substance, a class A misdemeanor), and AS
11.71.060(a)(4) (defining simple possession of four ounces or
more as sixth-degree misconduct, a class B misdemeanor).
6. An example of the same problem in a somewhat more
familiar statutory setting makes it easier to see the
inappropriateness of convicting on more than one count. Alaska
Statute 11.41.220 defines several alternative ways of committing
third-degree assault, including recklessly placing a person in
fear of imminent serious physical injury by means of a dangerous
instrument (subparagraph (a)(1)(A)) and recklessly causing
physical injury by means of a dangerous instrument (subparagraph
(a)(1)(B)). An offender who recklessly assaults another person
with a dangerous instrument, simultaneously placing the victim in
fear and causing physical injury, can certainly be prosecuted for
third-degree assault under both statutory theories. However,
only one third-degree assault occurs. Because the alternative
statutory theories define the same offense and the offender's
conviction results from a single criminal act involving a single
victim, conviction for more than one count of assault is barred.
Arguably double jeopardy might not have precluded
separate convictions if it were clear that Atkinson's conviction
on Count I was based on his manufacture of the marijuana rather
than on his possession of it, since different criminal acts might
then have been found. See Davis v. State, 766 P.2d 41, 45-46
(Alaska App. 1987). However, neither the jury instructions nor
the state's argument at trial limited the jury to convicting
based on the theory of manufacture. Since the record is
ambiguous on the issue, the ambiguity must be resolved in
Atkinson's favor. Cf. Clifton v. State, 758 P.2d 1279, 1285
(Alaska App. 1988).
