NOTICE: This opinion is subject to
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bring typographical or other formal errors to
the attention of the Clerk of the Appellate
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THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANKLIN E. DAWSON, )
) Court of Appeals No. A-5065
Appellant, ) Trial Court No. 3AN-S92-9654CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1401 - March 31, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Rex Lamont Butler,
Anchorage, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Franklin E. Dawson was convicted by a jury of two
counts of delivering cocaine, in violation of AS 11.16.110(2)(B)
and AS 11.71.030(a)(1)(misconduct involving a controlled
substance in the third degree), and five counts of maintaining a
residence used for the distribution of cocaine, in violation of
AS 11.71.040(a)(5) (misconduct involving a controlled substance
in the fourth degree). Superior Court Judge Rene J. Gonzalez
sentenced Dawson to three years' imprisonment on each of the
delivery counts and ordered the sentences to run concurrently
with one another. On each of the maintaining charges, the judge
sentenced Dawson to two years' imprisonment, all suspended, and
ordered these sentences to run concurrently with one another but
consecutively to the sentences imposed on the delivery counts.
Judge Gonzalez also imposed a special condition of probation
restricting Dawson from having any unauthorized contact with his
wife following Dawson's release from prison. Dawson appeals his
convictions on the maintaining charges; he also contends that his
sentence is excessive and challenges the probation condition
prohibiting unauthorized contact with his wife.
FACTS
On five occasions during November and December, 1992,
an undercover police officer purchased cocaine from Dawson and/or
Dawson's wife. The first sale occurred in an Anchorage apartment
on 26th Avenue that the Dawsons rented and occupied. On that
occasion Dawson allowed the undercover officer into the apartment
and was present during the sale, but the sale itself was
transacted by Dawson's wife. After the first sale, Dawson and
his wife moved to a new apartment, on Spenard Road. The
remaining four sales occurred there. Dawson was in the apartment
during each transaction: on one occasion he handed the cocaine to
the undercover officer; on another occasion the officer handed
his payment to Dawson but received the cocaine from Dawson's
wife; and on the two remaining occasions Dawson was merely
present while his wife delivered the drugs and was paid.
The state charged Dawson with one count of delivering
cocaine for each of the two incidents in which he actively
participated. The state also charged him with five counts of
maintaining a dwelling used for the keeping or distribution of
cocaine -- one count for each of the five sales that occurred at
Dawson's two apartments. At trial, Dawson unsuccessfully moved
for judgments of acquittal on the maintaining charges. He argued
that Alaska's statutory prohibition against maintaining a
dwelling used for the keeping or distribution of controlled
substances -- Alaska's crack-house statute -- applies only to
dwellings that are used exclusively for purposes of keeping or
distributing controlled substances. Alternatively, Dawson argued
that the crime of maintaining is a continuing offense and that,
for this reason, he could not be convicted separately for each
sale that occurred at his apartments. On appeal, Dawson renews
these arguments.
DISCUSSION
1. Interpretation of Alaska's Crack-House Statute
In order to resolve Dawson's claim of insufficient
evidence, we must first determine the precise nature of the
conduct prohibited by Alaska's crack-house statute. In relevant
part, AS 11.71.040(a)(5) provides that misconduct involving a
controlled substance in the fourth degree occurs when a person
"knowingly keeps or maintains any store, shop, warehouse,
dwelling, building, vehicle, boat, aircraft, or other structure
or place which is used for keeping or distributing controlled
substances in violation of a felony offense under this
chapter[.]"
This provision has never been interpreted by an
appellate court in Alaska;1 it was adopted by the Alaska
legislature in 1982 as part of a comprehensive revision of
Alaska's drug laws. As with the balance of Alaska's revised drug
laws, the crack-house provision derives from the Uniform
Controlled Substances Act (UCSA). See ch. 45, 1, SLA 1982.
Similar provisions, also patterned on the UCSA, have been adopted
and enforced by the federal government and in numerous states.
See generally Emile F. Short, Annotation, Permitting Unlawful Use
of Narcotics in Private Home as Criminal Offense, 54 A.L.R.3d
1297 (1974); Richard Belfiore, Annotation, Validity,
Construction, and Application of Federal "Crack-House Statute"
Criminalizing Maintaining Place for Purpose of Making,
Distributing, or Using Controlled Drugs (21 USC 856), 116
A.L.R. Fed 345 (1993). The large body of decisional law that has
developed in other jurisdictions provides an invaluable resource
for the interpretation of Alaska's provision.2 We consider first
the elements of the offense relating to conduct, then the
elements involving culpable mental state.
a. Elements Relating to Conduct
A commonsense reading of AS 11.71.040(a)(5) suggests
that the provision is meant to bar any person who "keeps or
maintains" any type of property enumerated in the statute from
personally using or permitting any other person to use that
property for the purpose of keeping or delivering a prohibited
controlled substance. This commonsense meaning is consistent
with the purpose expressed in the legislative commentary to AS
11.71.040(a)(5), which notes: "This provision, for example, would
include the landlord of a warehouse who knowingly rents to a
person who uses the structure for manufacturing or distributing
controlled substances illegally." Commentary and Sectional
Analysis for the 1981 Revision of Alaska's Controlled Substances
Laws, Journal Supp. No. 60 at 14, 1981 House Journal 2261.
Federal cases interpreting 21 U.S.C. 856(a)(1) and
(2)3 -- the federal counterpart to Alaska's crack-house statute
-- ascribe the same basic meaning to the federal statute,
describing it as "aimed . . . at persons who occupy a
supervisory, managerial, or entrepreneurial role in a drug
enterprise, or who knowingly allow such an enterprise to use
their premises to conduct its affairs." United States v. Thomas,
956 F.2d 165, 166 (7th Cir. 1992). Although the federal cases
suggest that the primary focus of this legislation is on large-
scale drug enterprises, they characterize the federal statute as
"broadly worded," id., and hold it applicable to situations
involving even small amounts of money and drugs. See, e.g.,
United States v. Robinson, 779 F. Supp. 606, 609 n.5 (D.D.C.
1991), rev'd on other grounds, 997 F.2d 884 (D.C. Cir. 1993).
The federal cases likewise appear to agree that, to be
covered by the federal statute, a dwelling or other building need
not be used for the exclusive, or even the primary purpose of
storing or distributing drugs; as long as such use is a
substantial purpose, the federal prohibition applies. See, e.g.,
United States v. Tamez, 941 F.2d 770, 773-74 (9th Cir. 1991)
(expansive language of 856(a)(2) does not require that sole
purpose of building -- in this case, a car dealership -- be to
store drugs or to function as a crack-house). The definition of
intentional conduct adopted by Alaska's legislature supports the
same conclusion; AS 11.81.900(a)(1) specifies that, "when
intentionally causing a particular result is an element of an
offense, that intent need not be the person's only objective."
Nevertheless, the federal cases also recognize that the
federal statute describes a continuing offense -- that an
isolated or incidental act of possession or sale in a building
will not fall within the federal statute. In United States v.
Clavis, 956 F.2d 1079 (11th Cir. 1992), modified on other
grounds, 977 F.2d 538 (11th Cir. 1992), for example, the court
considered the meaning of "maintain," as used in 21 U.S.C.
856(a)(1), which prohibits "knowingly . . . maintain[ing] any
place for the purpose of manufacturing, distributing, or using
any controlled substance." Finding the plain meaning of the word
-- which is undefined in the federal statute -- applicable, id.
at 1090, the court construed the word "to exclude a single,
isolated act as a violation and to embrace some degree of
continuity." Id. at 1094.
This view accords with the consensus of courts
interpreting UCSA-based state crack-house statutes similar to
Alaska's. These courts have uniformly adopted the position that
the prosecution is required to prove, and the jury to find,
"something more than a single, isolated instance of the
proscribed activity." Barnes v. State, 339 S.E.2d 229, 234 (Ga.
1986) (also citing and discussing like cases from California,
Maryland, Rhode Island, and Indiana); see also Meeks v. State,
872 P.2d 936, 938-39 (Okla. Crim. 1994). At the same time,
however, they recognize "that in determining the sufficiency of
the evidence [on the issue of continuity], each case must be
adjudged according to its own unique facts and circumstances, and
there is no inflexible rule that evidence found only on a single
occasion cannot be sufficient to show a crime of a continuing
nature." Id; see also Howard v. State, 815 P.2d 679, 683 (Okla.
Crim. 1991).
The terminology of Alaska's crack-house provision
similarly suggests the need for a finding of continuity. The
statute, in broad terms, prohibits "keeping" or "maintaining"
various types of property for drug-related activities; neither
"keep" nor "maintain" is defined. In their ordinary meaning,
both words strongly imply an element of continuity or duration.4
We conclude that the plain meaning of "keep" and "maintain"
should govern the application of Alaska's crack-house statute.
In particular, we conclude that the statute must be construed to
require a finding of continuity and to preclude conviction for an
isolated incident of possession or distribution. In keeping with
other jurisdictions, however, we further conclude that the
existence of continuity presents a factual issue to be decided in
light of the totality of the facts in each case: "there is no
inflexible rule that evidence found only on a single occasion
cannot be sufficient to show a crime of a continuing nature."
Barnes, 339 S.E.2d at 234.
In another respect, however, applying the plain meaning
of "keep" and "maintain" must be avoided. The common meaning of
these words might include activities such as routine maintenance
or upkeep of property; but the context in which these words are
used in AS 11.71.040(a)(5) indicates that the statute demands a
showing of something more. The central goal of Alaska's crack-
house statute, as we have already noted, is to prohibit persons
from personally using or permitting others to use various types
of property, enumerated in the statute, for the purpose of
keeping or distributing controlled substances. This statutory
goal necessarily presupposes that, for a person to "keep" or
"maintain" a structure in violation of the crack-house statute,
the person must control or have authority to control the use or
occupancy of the structure.
Illustrative of the point is State v. Pyritz, 752 P.2d
1310 (Or. App. 1988). In Pyritz, the Oregon Court of Appeals
rejected a claim of vagueness brought against an Oregon statute
prohibiting keeping, maintaining, frequenting, or remaining at a
place "while knowingly permitting persons to use controlled
substances in such place or to keep or sell them[.]" In so
doing, the court construed the undefined word "permitting" to
mean "that one who, (1) having legal authority over persons who
use, keep, or sell illegal controlled substances, at the
specified place . . ., (2) authorizes or consents to such use,
possession, or sale." Id. at 1313 (footnote omitted). In
support of this definition, the court observed: "Before one can
be said to `permit' something, one must have authority to forbid
it." Id.5 See Clavis, 956 F.2d at 1091 (approving district
court's instruction stating that "the term [maintain] does
contemplate that a defendant exercise some degree of control over
the premises and knowingly made such place available for the use
alleged in the indictment"); Meeks, 872 P.2d at 939 (adopting
instruction defining "keeping or maintaining," as used in
Oklahoma's crack-house statute, to require "that the defendant
have control, ownership, or management of the residence,
structure, or vehicle, as distinguished from other persons
resorting to it to buy or use controlled dangerous substances in
violation of this act").
A final observation to be made with regard to the actus
reus elements of the crack-house statute pertains to the type of
drug-related activities that must occur on the property that is
kept or maintained by the accused. The language of the statute
specifies that the property must be used "for keeping or
distributing controlled substances in violation of a felony
offense under this chapter[.]" This simply requires that the
property be used for the purpose of keeping or distributing drugs
in a manner that amounts to a felony under Alaska's drug laws;
use for purposes of committing misdemeanor-grade controlled
substance offenses is excluded from the language of the crack-
house statute.
b. Elements Relating to Culpable Mental State
The culpable mental state requirement of Alaska's crack-
house statute must next be considered. The culpable mental state
specified in the crack-house statute is "knowingly." Alaska
Statute 11.71.040(a)(5) provides that a violation occurs when the
accused "knowingly keeps or maintains" property used for drug-
related purposes. While this provision makes it clear that the
accused must knowingly keep or maintain property that is
illegally used, it is less than clear in specifying whether the
accused must actually know that the property is being used
illegally when the illegal use is carried on by other persons.
We conclude that awareness of the illegal use is required. Just
as one must have authority to forbid something before one can be
said to permit it, Pyritz, 752 P.2d at 1313, so "one cannot be
said to have permitted a thing of which he has no knowledge or
means of knowledge[.]" Id. (quoting Lemery v. Leonard, 196 P. 376
(Or. 1921)).
Our conclusion is reinforced by the prevailing federal
interpretation of 21 U.S.C. 856(a)(2), whose culpable mental
state requirement is worded similarly to Alaska's. The federal
statute makes it unlawful to "manage or control any building,
room, or enclosure, either as an owner, lessee, agent, employee,
or mortgagee, and knowingly and intentionally rent, lease, or
make available for use, with or without compensation, the
building, room, or enclosure for the purpose of unlawfully
manufacturing, storing, distributing, or using a controlled
substance." This provision has been interpreted to mean that
"the defendant is liable if he manages or controls a building
that others use for an illicit purpose, and he either knows of
the illegal activity or remains deliberately ignorant of it."
United States v. Banks, 987 F.2d 463, 466 (7th Cir. 1993); see
United States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990).
While liability for remaining "deliberately ignorant"
of illegal activity might at first blush suggest a culpable
mental state requirement entailing something less than actual
knowledge -- something more akin to recklessness -- closer
scrutiny dispels the notion. Under AS 11.81.900(a)(2),
a person acts "knowingly" with respect
to conduct or to a circumstance described by
a provision of law defining an offense when
the person is aware that the conduct is of
that nature or that the circumstance exists;
when knowledge of the existence of a
particular fact is an element of an offense,
that knowledge is established if a person is
aware of a substantial probability of its
existence, unless the person actually
believes it does not exist[.]
In our view, one who remains "deliberately ignorant of
[illegal activity]," Banks, 987 F.2d at 466, is necessarily
"aware of a substantial probability of its existence," and so,
acts "knowingly" under AS 11.81.900(a)(2). The commentary to AS
11.81.900(a)(2) confirms this conclusion:
Under the Code, knowledge requires
an awareness on the part of the defendant
that his conduct is of the nature described
by the statute defining the offense or that
the circumstances described by the statute
exist. The definition also covers the sit
uation where a person deliberately avoids
acquiring knowledge by closing his eyes
(sometimes referred to as "wilful blindness")
by providing that "when knowledge of the
existence of a particular fact is an element
of an offense, that knowledge is established
if a person is aware of a substantial
probability of its existence, unless he
actually believes it does not exist."
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 141, 1978 Senate Journal 1399.
Hence, we conclude that, under Alaska's crack-house
statute, the accused must act knowingly both with respect to the
proscribed conduct of keeping or maintaining property that is
used for the purpose of illegal storage or distribution of
controlled substances and with respect to the existence of the
illegal use itself. We emphasize, however, that when the accused
keeps or maintains property and allows others to use it for the
purpose of drug-related activities, the state need not prove that
the accused acted intentionally.6 That is, the accused need not
share the illegal purpose of those who carry on the drug-related
activity, but need only know of it -- "the `purpose' may be that
of others." Banks, 987 F.2d at 466.7
c. Summary of Elements
To summarize, we conclude that, to establish a
violation of AS 11.71.040(a)(5), the state must prove that the
accused, while knowingly controlling or knowingly having
authority to control property of the type listed in the statute,
personally used the property or knowingly permitted8 another
person to use it for the purpose of keeping or distributing
prohibited controlled substances in a manner that amounts to a
felony under Alaska law. The state need not prove that the
property was used for the exclusive purpose of keeping or
distributing controlled substances, but such use must be a
substantial purpose of the users of the property, and the use
must be continuous to some degree; incidental use of the property
for keeping or distributing drugs or a single, isolated
occurrence of drug-related activity will not suffice. The
purpose with which a person uses property and whether such use is
continuous are issues of fact to be decided on the totality of
the evidence in each case; the state is not required to prove
more than a single specific incident involving the keeping or
distribution of drugs if other evidence of continuity exists.
2. Application of the Crack-House Statute to Dawson's Case
We now consider Dawson's claim of insufficient evidence
in light of this interpretation.9 Dawson's primary basis for
claiming insufficient evidence -- that his apartments were not
exclusively used for drug trafficking -- is meritless. As we
have indicated, exclusive use is not required.
Viewing the totality of the evidence in the light most
favorable to the state, sufficient evidence was presented to
allow reasonable jurors to conclude that Dawson exercised control
over the apartments that he and his wife rented and lived in, and
that he rented the apartments to be used for the purpose of
keeping and distributing of cocaine -- conduct amounting to a
felony.10 Moreover, because there was ample evidence of Dawson's
personal participation in two cocaine sales, the jury could
certainly find that Dawson acted knowingly both with respect to
maintaining the apartments and with respect to the illegal
activities that occurred there. Since the evidence showed a
series of sales occurring over a two-month span, it was also
sufficient to support a finding of continuous drug-related
activity. Accordingly, sufficient evidence was presented at
trial to support a finding that Dawson violated AS
11.71.040(a)(5). And since Dawson rented two separate apartments
during the period of time covered by the evidence, the evidence
could conceivably have supported his conviction for two separate
acts of keeping or maintaining.
Nevertheless, because the crack-house statute defines a
continuing offense, and since the evidence in this case
establishes at most two separate acts of keeping or maintaining a
dwelling,11 Dawson's guilt of five separate violations of AS
11.71.040(a)(5) is not supported by the evidence. Furthermore,
because each of Dawson's five alleged violations of the crack-
house statute was based on an isolated drug sale, and because
full and accurate instructions on the elements of this offense
were not given at trial, Dawson's jury was never required to
decide, or even to consider, whether his use of the apartments
for keeping or distributing cocaine was in fact a continuing use,
or whether it merely amounted to a series of isolated
transactions that were incidental to Dawson's presence in the
apartments.
That the evidence plainly would have supported a
finding of continuing, purposive use cannot cure the problem
created by the jury's failure to decide the issue. Despite the
theoretical sufficiency of the evidence to support Dawson's
conviction for two violations of the crack-house statute, the
verdicts of conviction on the crack-house violations do not
represent the jury's determination of all of the necessary
elements of the offense. Under the circumstances, even though
Dawson failed to object to the jury instruction covering the
elements of the offense, we conclude that allowing Dawson's
convictions to stand on even two of the crack-house counts would
amount to plain error. Dawson's convictions on the five crack-
house counts must be vacated.
3. Sentencing Issues
Our ruling leaves intact Dawson's convictions and
sentences for delivery of cocaine; we must consider his
sentencing arguments relating to those counts.12 Dawson claims
that, because he is a first felony offender, his three-year
sentence for delivery of cocaine is excessive. However, delivery
of cocaine constitutes misconduct involving a controlled
substance in the third degree; as such, the offense is a class B
felony and is punishable by a maximum term of ten years and by a
second offense presumptive term of four years. AS 11.71.030(c);
AS 12.55.125(d) & (d)(1). Since Dawson's sentence falls well
below the second offense presumptive term, it is within the
permissible range of sentences prescribed by Austin v. State, 627
P.2d 657 (Alaska App. 1981). For typical first offense
convictions involving commercial sales of small quantities of
cocaine, this court has routinely upheld sentences of two years,
even if the defendant has shown exceptionally good prospects for
rehabilitation. See Major v. State, 798 P.2d 341, 344 (Alaska
App. 1990); Smith v. State, 767 P.2d 211, 214 (Alaska App. 1989).
Given the clearly commercial nature of Dawson's involvement in
cocaine trafficking and his extensive history of misdemeanor
convictions, a first offense sentence of three years is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
Dawson also challenges as unwarranted the special
condition of probation that forbids him from having any contact
with his wife unless the contact is approved by his probation
officer. Dawson argues that to require all contact with his wife
to be supervised or approved by a probation officer is a "virtual
annulment of his marriage."
In the present case, the sentencing court evidently
first decided to restrict Dawson's contact with his wife because
the court had been informed that the Dawsons were separated and
contemplating divorce. Nevertheless, when informed that the
Dawsons' marriage remained intact, the court declined to rescind
the restriction. The court found the restriction necessary
because Dawson's wife had been involved equally in dealing crack
with Dawson, and the court had no information as to the extent of
her substance abuse problem or as to her prospects for
rehabilitation. In Thomas v. State, 710 P.2d 1017, 1019
(Alaska App. 1985), we stated:
[C]onditions of probation must be "reasonably
related to the rehabilitation of the offender and
the protection of the public and . . . not unduly
restrictive of liberty." Roman v. State, 570 P.2d
1235, 1240 (Alaska 1977); Edison v. State, 709
P.2d 510, 511 (Alaska App. 1985). Conditions which
restrict constitutional rights are subject to
special scrutiny to determine whether the restric
tion serves the goals of rehabilitation of the
offender and protection of the public. Roman, 570
P.2d at 1241.
A condition of probation restricting marital
association plainly implicates the constitutional rights of
privacy, liberty and freedom of association and, under Thomas,
must be subjected to special scrutiny. While discouraging a
probationer from associating with former partners in crime is
obviously related to the goal of rehabilitation, precluding
association between marital partners is just as obviously an
extreme restriction of liberty, even when the marital partners
were once partners in crime. In certain types of cases, such as
cases involving domestic violence, limiting marital association
would plainly be defensible.13 In any type of case, it is
conceivable that such a limitation might be justified by case-
specific circumstances demonstrating actual necessity and the
lack of less restrictive alternatives. In such a case, however,
to avoid unnecessary intrusion on marital privacy, it would seem
appropriate to tailor a close fit between the scope of the order
restricting marital association and the specific needs of the
case at hand.
Here, the sentencing court did not question the
existence of a bona fide marital relationship.14 Other special
conditions of probation imposed by the court required Dawson to
refrain from using and possessing all controlled substances, to
submit to drug testing when asked by his probation officer, to
participate in substance abuse treatment if deemed necessary, to
submit to substance abuse evaluation and comply with all
recommendations, and not to have any contact with codefendants
other than his wife. The court did not specify why it considered
these additional restrictions to be insufficient to address its
concerns for Dawson's success as a probationer. Finally, the
court made no apparent effort to tailor the scope of the marital
association restriction to the specific circumstances of Dawson's
case. Instead, the disputed condition delegates to Dawson's
probation officer unconditional and unlimited authority to
regulate Dawson's marital relationship.
We are unprepared to say that a narrower, better
tailored, and more fully explained restriction would not be
justified in Dawson's case. But we conclude that, as imposed,
the challenged condition is unduly restrictive of liberty and
cannot withstand scrutiny. Accordingly, the condition must be
vacated. Upon remand, the superior court may, in its discretion,
consider the appropriateness of a more limited special condition.
CONCLUSION
Dawson's convictions for misconduct involving a
controlled substance in the third degree are AFFIRMED. Except as
to the special condition of probation restricting marital
contact, his sentences for these offenses are also AFFIRMED.
Dawson's convictions for misconduct involving a controlled
substance in the fourth degree are REVERSED. This case is
REMANDED for further proceedings consistent herewith.
_______________________________
1. In Davis v. State, 766 P.2d 41 (Alaska App. 1988), we
held that, for purposes of double jeopardy, the statutory
elements of Alaska's crack-house statute, AS 11.71.040(a)(5),
were sufficiently distinguishable from the elements of delivery
of a controlled substance, AS 11.71.030(a), to allow the entry of
separate convictions for both offenses. Id. at 46. We were not
called upon, however, to interpret the crack-house statute or to
ascertain its precise meaning.
2. Although both parties in this case dispute the meaning
and application of AS 11.71.040(a)(5), neither recognizes its
derivation or provides any citation to or discussion of cases
from other jurisdictions having similar provisions. Given the
virtual absence of Alaska case law and the abundance of relevant
decisions in other jurisdictions, the parties' exclusive reliance
on Alaska case law is not to be condoned. We think it
appropriate to note our disapproval of the narrow manner in which
the meaning of AS 11.71.040(a)(5) has been argued by the parties
in their briefs.
3. 21 U.S.C. 856(a)(1) makes it a crime to "knowingly
open or maintain any place for the purpose of manufacturing,
distributing, or using any controlled substance"; 856(a)(2)
makes it unlawful to "manage or control any building, room, or
enclosure, either as an owner, lessee, agent, employee, or
mortgagee, and knowingly and intentionally rent, lease, or make
available for use, with or without compensation, the building,
room, or enclosure for the purpose of unlawfully manufacturing,
storing, distributing, or using a controlled substance."
4. "[U]nless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common meaning." Perrin
v. United States, 444 U.S. 37, 42 (1979)(citation omitted); see
Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).
Webster's II New Riverside University Dictionary 717 (2d ed.
1988) defines "maintain" as
1. To continue: carry on 2. To preserve
or keep in a given existing condition, as of
efficiency or good repair 3. a. To provide
for b. To keep in existence: sustain 4. To
defend, as against danger or attack 5. To
declare to be true: affirm[.]
The same dictionary defines "keep" in relevant part:
1. To retain possession of 2. To have
as a supply 3. To provide with maintenance
and support 4. To put customarily 5. a. To
supply with room and board for a fee b. To
raise 6. To maintain for use or service 7.
To manage, tend, or have charge of 8. To
preserve 9. To cause to continue in a given
state or course of action 10. a. To maintain
records in b. To enter (data) in a book 11.
a. To detain b. To restrain c. To refrain
from divulging d. To save in reserve 12. To
maintain 13. To adhere to: fulfill 14. To
celebrate: observe.
Id. at 662.
5. The court in Pyritz further made it clear, however,
that permission may be given by implied consent, and that express
consent or authorization need not be shown. To make this point,
the court relied on a definition of "permit" adopted in a 1921
Oregon Supreme Court case, Lemery v. Leonard, 196 P. 376 (Or.
1921): "To `permit' means to allow by tacit consent or by not
hindering, taking no steps to prevent, or to grant leave by
express consent or authorization." Pyritz, 752 P.2d at 1313.
6. When the accused maintains the property and is also the
one who uses it illegally, then this distinction between knowing
and intentional conduct becomes superfluous, since an accused
person who maintains property and personally uses it for drug-
related activities will always act intentionally with respect to
both the proscribed use and the conduct of maintaining the
property.
7. A useful illustration of this distinction is the
disparate manner in which the federal courts interpret
subsections (a)(1) and (a)(2) of 21 U.S.C. 856. As our
discussion in the text indicates, subsection (a)(2), whose
culpable mental state requirement is similar to Alaska's, is
interpreted to require that the accused know of and permit the
use of property for an illegal purpose, but does not require the
accused to share the purpose. In contrast, subsection (a)(1) of
the federal statute, which applies when the accused "knowingly
open[s] or maintain[s] any place for the purpose of" illegal drug-
related activity (emphasis added) is interpreted to require that
the accused act knowingly with respect to the conduct of
maintaining, and intentionally with respect to the illegal use of
the premises opened or maintained. See Chen, 913 F.2d at 189-
190. It has thus been held that subsection (a)(1) "requires two
mental elements, knowledge and purpose." Clavis, 956 F.2d at
1090.
8. We use the word "permits" in this context in an
ordinary and commonsense manner to mean allowing by express or
tacit consent, or by a failure to take steps to hinder or prevent
when such steps are available.
9. In reviewing a claim of insufficient evidence, we must
consider the evidence and the inferences to be drawn from it in
the light most favorable to the state and determine if "fair-
minded jurors in the exercise of reasonable judgment could differ
on the question of whether guilt had been established beyond a
reasonable doubt." Pavlik v. State, 869 P.2d 496, 497 (Alaska
App. 1994) (citations omitted).
10. Compare, e.g., Bridges v. State, 878 S.W.2d 781, 783
(Ark. App. 1994), and Ramey v. State, 857 S.W.2d 828, 831-32
(Ark. App. 1993), with Holmes v. State, 583 N.E.2d 180 (Ind. App.
1991).
11. Cf. United States v. Cooper, 966 F.2d 936, 942-45 (5th
Cir. 1992) (approving multiple conviction when evidence showed
that a crack-house was repeatedly raided, closed, and reopened).
12. Given our reversal of the crack-house counts, we need
not consider Dawson's remaining arguments relating to those
offenses. We likewise need not address Dawson's argument that
double jeopardy bars consecutive sentencing on the crack-house
and delivery of cocaine charges. Dawson has not challenged his
convictions for delivery of cocaine, only his sentence. Dawson
also challenges the crack-house statute on equal protection
grounds. To the extent his challenge is not based on a
misinterpretation of the statutory elements, we find the
challenge meritless.
13. See, e.g., State v. Gilkey, 826 P.2d 69 (Or. App. 1992)
(condition of probation that defendant not contact wife without
probation officer or court's permission appropriate where
defendant convicted of harassing wife).
14. Cf. United States v. Bortels, 962 F.2d 558 (6th Cir.
1992); State v. Davis, 687 P.2d 998 (Idaho App. 1984); State v.
Donovan, 568 P.2d 1107 (Ariz. App. 1977) (all approving
relatively broad restrictions in cases dealing with fianc‚s or
girlfriends).
