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THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID SIMMONS, )
) Court of Appeals No. A-4972
Appellant, ) Trial Court No. 4BE-S90-552CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1419 - July 21, 1995]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Mary E. Greene and James A. Hanson, Judges.
Appearances: Randall S. Cavanaugh, Kirk, Robinson &
Cavanaugh, 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.
David Simmons was convicted of two counts of misconduct
involving weapons in the first degree, AS 11.61.200(a)(1)(felon
in possession), following a jury trial before Superior Court
Judge James A. Hanson. Judge Hanson sentenced Simmons to a
composite term of ten years. Simmons now appeals his conviction
on numerous grounds and contends that his sentence is excessive.
We affirm Simmons' conviction and sentence but conclude that
double jeopardy bars the entry of judgment against Simmons on
more than one count.
Simmons, who had previously been convicted of a felony,
was charged with unlawfully possessing a .44 magnum pistol in
Bethel on two occasions: once in March or April of 1990 and once
in July of the same year. Evidence establishing his ownership
and possession of the pistol derived in part from a search of
Simmons' Bethel residence in July 1990. The search was conducted
pursuant to a warrant; below and on appeal Simmons has contested
the validity of the warrant, arguing that it was based on stale
and false information.
The search warrant for Simmons' residence was based
largely on the July 23, 1990, testimony of M.J., who had been
engaged in a romantic relationship with Simmons and had lived
with him in his trailer for about four months. M.J. testified
that in the second or third week of April, Simmons received a
pistol in the mail. Shortly thereafter, M.J. saw him fire the
gun at a nearby shooting range. According to M.J., Simmons
usually kept the gun "[i]n the back bedroom. That's where he
usually keeps it." M.J. reported that, "Last time I see it was
in my suitcase." Several days before testifying, M.J. had moved
out of Simmons' trailer. She reported to the police that Simmons
had assaulted her, and she sought police assistance in obtaining
her car keys from him.
Simmons argues that M.J.'s testimony was stale because
it described his possession of a gun almost four months prior to
the date of the search warrant hearing. A search warrant must be
based on current information that supports a finding that
probable cause to search exists presently. Snyder v. State, 661
P.2d 638, 646-47 (Alaska App. 1983). The freshness of
information is determined by a flexible test, however -- one that
takes into account not just the raw passage of time but the
totality of the circumstances of each case. Id. at 647.
Relevant considerations include the type of crime involved, "the
nature of the items sought[,] the extent of the suspect's
opportunity for concealment[,] and normal inferences as to where
a criminal would be likely to hide incriminating articles."
Morrow v. State, 704 P.2d 226, 230 (Alaska App. 1985)(citing
Snyder, 661 P.2d at 648)(omitting numbering).
Here, M.J.'s testimony described Simmons' receipt of a
handgun in the mail, his subsequent practice with the gun, and
his continued possession of it at home. Although M.J. did not
specify when she had last seen the gun, she made it clear that
she had seen it on at least one occasion after Simmons fired it
in mid- to late April. M.J.'s testimony described no
circumstances indicating that Simmons no longer possessed the
weapon or that he kept it elsewhere; her statement that Simmons
"usually keeps" the gun in his back bedroom suggests both
continuity and currency.1
In issuing a search warrant, a magistrate has only to
determine whether there are reasonable grounds to believe that
the items to be searched for are at the premises to be searched,
not that they are actually there. Stuart v. State, 698 P.2d
1218, 1222 (Alaska App. 1985). This court traditionally accords
great deference to a magistrate's determination of probable cause
and "must resolve doubtful or marginal cases largely by the
preference to be accorded warrants." Morrow, 704 P.2d at 229.
See also Kvasnikoff v. State, 804 P.2d 1302, 1306 (Alaska App.
1991). Considering the totality of the circumstances, we
conclude that the issuing magistrate could properly find M.J.'s
observations sufficiently fresh to support probable cause.
Simmons also maintains that M.J.'s testimony was false
and that the warrant must therefore be suppressed under State v.
Malkin, 722 P.2d 943 (Alaska 1986). Simmons' argument asserts no
impropriety on the part of the police but involves alleged
fabrication only by M.J., a private citizen. Simmons sets forth
no argument or authority to support the conclusion that
suppression would be appropriate in such a case, even assuming
that a material false statement were proved. The state cites
authority to the contrary. See 1 Wayne R. LaFave, Search and
Seizure 1.8(a), at 174-78 (2d ed. 1987). In any event, the
superior court rejected Simmons' evidence of fabrication on
credibility grounds. This ruling was not clearly erroneous. See
McLaughlin v. State, 818 P.2d 683, 686 (Alaska App. 1991).
Simmons next claims that the trial court erred in
allowing E.A., a rebuttal witness for the prosecution, to testify
that in September of 1990 Simmons threatened her with a pistol
that had been delivered to Simmons, at Simmons' request, by a
friend of Simmons, Jose Manuel Herrera. The trial court admitted
E.A.'s testimony over Simmons' objection that it was inadmissible
under Alaska Rule of Evidence 404(b) and 403. On appeal, Simmons
renews his claim that the testimony had no legitimate
nonpropensity value and was in any event more prejudicial than
probative.
Simmons' defense at trial, however, was that he had
possessed the disputed handgun only fleetingly -- long enough to
dispose of it by selling it to Herrera after Simmons received it
in the mail. In support of this defense, Herrera testified that
Simmons had sold him the gun in May of 1990; Herrera denied ever
giving the gun back to Simmons. The state offered E.A.'s
testimony to refute Herrera's testimony and to show that even if
Simmons had in fact transferred physical possession of the gun to
Herrera at some time, Simmons had never relinquished constructive
possession of the gun, since it had always been at his beck and
call. The trial court admitted the evidence but cautioned the
jury that "you are not trying Mr. Simmons here today for any
incidents that may have occurred, as to his guilt or innocence of
any incidents that may have occurred in September of last year."
Our review of the record convinces us that the trial
court did not abuse its discretion in finding this evidence
relevant to rebut Simmons' defense or in finding its probative
value to outweigh its potential for prejudice. See, e.g.,
Adkinson v. State, 611 P.2d 528, 532 (Alaska 1980); McKee v.
State, 488 P.2d 1039, 1040-41 (Alaska 1971).2
Simmons separately claims that the trial court deprived
him of the opportunity to raise the affirmative defense set out
in AS 11.61.200(b)(3):
(b) It is an affirmative defense to a prosecution
under (a)(1) or (2) of this section that
. . . .
(3) a period of five years or more has elapsed
between the date of the person's unconditional discharge on the
prior offense and the date of the possession, sale, or transfer
of the firearm.
A review of the record, however, establishes that the court never
deprived Simmons of the opportunity to raise this affirmative
defense. Simmons simply did not attempt to raise it.3 Moreover,
the theory Simmons advances in support of his defense appears to
have no legal merit. We find no error.
Simmons next contends that the constitutional
provisions against double jeopardy4 were violated by his
convictions of two counts of misconduct involving weapons in the
first degree. He asserts that because his possession of the .44
magnum handgun was continuous and his intent the same throughout,
he could only be convicted and sentenced for a single count of
misconduct involving weapons.
Simmons' argument appears to have merit. Simmons was
charged with possessing the same handgun on two occasions during
a three- to four-month period. It appears to be a well-settled
proposition in felon-in-possession cases that the element of
possession implies continuity: "Possession is a course of
conduct, not an act; by prohibiting possession Congress intended
to punish as one offense all of the acts of dominion which
demonstrate a continuing possessory interest in a firearm."
United States v. Jones, 533 P.2d 1387, 1391 (6th Cir. 1976). See
also State v. Williams, 319 N.W.2d 748, 752 (Neb. 1982).
It is also well settled that a continuing course of
conduct statutorily defined as a single crime cannot properly be
charged as multiple crimes occurring at discreet moments in time.
"The Double Jeopardy Clause is not such a fragile guarantee that
prosecutors can avoid its limitations by the simple expedient of
dividing a single crime into a series of temporal or spatial
units." Brown v. Ohio, 432 U.S. 161, 169 (1977). Cf. Dawson v.
State, 894 P.2d 672, 679 (Alaska App. 1995).
For this reason, courts have held that, when a
defendant is charged with multiple counts alleging possession of
the same weapon on different occasions, the state must bear the
burden of proving that the defendant's possession was not
continuous.5 This burden must be met by proof beyond a
reasonable doubt.6
The state nevertheless argues that Simmons' double
jeopardy argument should be rejected because, in the present
case, evidence was presented at trial indicating that Simmons'
possession of the .44 magnum pistol on the two occasions charged
-- in April and in July of 1990 -- was interrupted by Simmons'
sale of the weapon to Herrera. The state's argument suffers from
two shortcomings. First, the claim of interrupted possession
advanced by the state on appeal is at odds with the theory of
prosecution it pursued below. Below, Simmons raised his double
jeopardy argument in the form of a pretrial motion to dismiss one
of the two counts with which he was charged. In response, the
state argued that Simmons' motion was premature -- that "the
proper remedy is merger after a determination of guilt." At
trial, even though evidence was presented indicating that the .44
magnum had at times been in Herrera's possession, the state took
the position that transfer of actual possession had no effect on
Simmons' constructive possession.
At the conclusion of trial, the jury was given
instructions covering actual and constructive possession. The
instructions told the jury that Simmons could be convicted if it
found either form of possession. In arguing the state's case to
the jury, the prosecutor specifically maintained that, even
though at times Herrera may have had actual possession of the
gun, the gun had always remained in Simmons' constructive
possession:
The conduct of Mr. Simmons throughout this time
period is consistent with someone who owned, possessed and had
dominion and control over a handgun. He had it sent to him in
March, it got to him in April, he used it in April. He used it
in July. He apparently misplaced it and was looking for it in
July, or late June. And then he tried to get rid of it, when he
found out that it -- he might get in trouble for it. He got rid
of it, in the sense that someone else was holding onto it. He
got rid of it in the sense that he gave it, or sold it to Mannie
Herrera. But it was still available to him, he still had control
over it, because all he had to do was pick up the phone, and ask
him to bring it over. And use [it] for whatever purposes he
wanted to use it. And that happened in September. And that's
consistent with Mr. Simmons possessing a gun.7
Thus, the theory advocated by the state at trial all but invited
the jury to convict Simmons of both charges based on a single,
uninterrupted course of illegal possession.
Second, and more fundamentally, although the evidence
presented at trial might theoretically have supported a finding
of interrupted possession, the jury was never required to
consider or decide the issue. Because the instructions did not
apprise the jury of the need to find that Simmons' possession of
the .44 magnum pistol had been interrupted at some point between
the first alleged offense and the second, the jury's verdicts
left the issue unresolved. At this juncture, "[a]ny ambiguity
must be resolved in favor of the accused." McDonald v. State,
872 P.2d 627, 660 (Alaska App. 1994). Cf. Dawson, 894 P.2d at
679. Accordingly, we conclude that Simmons' two convictions must
merge.8
Simmons further asserts that the trial court erred in
denying him a new trial based on alleged juror misconduct. At
trial, Dalton Moss was called by the state to testify about the
circumstances surrounding his possession of a holster and some
live .44 caliber ammunition belonging to Simmons. According to
Moss, Simmons had given him a rucksack containing the holster and
ammunition toward the end of the summer of 1990 and asked him "to
hang onto it." Moss turned the rucksack over to the police after
his wife decided that she did not want live ammunition in the
house with children. Moss also testified that he had later
talked to Simmons in the jail and "was led to believe that I was
supposed to say he gave me this rucksack to sell[.]"
After trial, Simmons filed a motion for a new trial,
alleging misconduct on the part of juror C.L. In response to
Simmons' motion, the superior court conducted a thorough hearing.
C.L. acknowledged that, sometime before the parties' final
arguments, she had overheard Dalton Moss talking on the
telephone. Moss had laughingly said "something to the effect
that, he didn't say what he was going to say, instead he said
everything [a] different way." During the jury's deliberations,
C.L. indicated to the other jurors that she wanted to abstain
from voting, saying that "there was a phone call which makes me
wonder about [Moss'] testimony." The other jurors told C.L. not
to inform them of the substance of that telephone call. C.L.
made no further mention of the issue. The jury then resumed its
deliberations, with C.L. participating.
Following the sentencing hearing, the superior court
entered a written order concluding that, objectively viewed, the
information overheard by C.L. had no effect on the jury's
verdict. The court thus denied Simmons' motion. Our review of
the record convinces us that the trial court did not abuse its
discretion in reaching this decision. See Swain v. State, 817
P.2d 927, 930, 934 (Alaska App. 1991).
Simmons lastly challenges his sentence. Our decision
that one of Simmons' convictions must be vacated makes it
unnecessary to consider Simmons' claim that his composite
sentence is excessive. We must nevertheless examine his
remaining sentencing arguments. Simmons maintains that the
sentencing court erred in refusing to strike unverified
information from his presentence report. Simmons' cursory
discussion of this issue, however, constitutes an abandonment.
See, e.g., Lewis v. State, 469 P.2d 689, 691-92 n.2 (Alaska
1970). Moreover, it appears to us that the information in the
presentence report is adequately verified. See generally Evan v.
State, ___ P.2d ___, Op. No. 1418 (Alaska App., July 14, 1995).
Simmons also maintains that the sentencing court erred
in rejecting his two proposed mitigating factors: that his
conduct in this case was among the least serious in its class and
that his past and current offenses have resulted in consistently
minor harm. AS 12.55.155(d)(9) & (d)(13). These arguments are
meritless; the sentencing court's rejection of the proposed
factors was not clearly erroneous. See Lepley v. State, 807 P.2d
1095, 1099 (Alaska App. 1991); Shaw v. State, 677 P.2d 259, 260
(Alaska App. 1984).
Simmons lastly contends that the imposition of maximum
sentences was unwarranted in his case. Upon conviction, Simmons
was subject to the presumptive term of three years specified for
third and subsequent felony offenders convicted of class C
felonies. AS 12.55.125(e)(2). The state proved two aggravating
factors: that Simmons' prior criminal history included repeated
instances of assaultive behavior and that Simmons had three or
more prior felony convictions. AS 12.55.155(c)(8) & (c)(15).
Based on Simmons' extensive criminal history, Judge Hanson
characterized Simmons as "clearly one of the most dangerous
people I've seen[,]" and found him to be "among the very worst
offenders[.]" The sentencing record supports these findings; the
findings, in turn, support Judge Hanson's decision to impose a
maximum term. See, e.g., State v. Graybill, 695 P.2d 725, 731
(Alaska 1985). Having independently reviewed the entire
sentencing record, we conclude that the sentence imposed below is
not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974).
The conviction and sentence as to one of the two counts
for which Simmons was convicted are AFFIRMED. As to the second
count, the conviction must be VACATED. This case is REMANDED to
the superior court with directions to amend Simmons' judgment of
conviction accordingly.
_______________________________
1. Professor LaFave cautions against reading too much into imprecise time
references: "the existence or nonexistence of probable cause should not
turn on whether the affidavit's verbs end in 's' or 'ed.'" 2 Wayne R.
LaFave, Search and Seizure 3.7(b), at 92-93 (2d ed. 1987)(footnote
omitted). We view M.J.'s use of the present tense "keeps" to be relevant,
but not pivotal. Cf. State v. Davenport, 510 P.2d 78, 82 n.8 (Alaska 1973)
(noting that courts must interpret search warrant affidavits in a
"commonsense and realistic fashion").
2. Simmons additionally argues that the trial court erred in allowing Herrera
to be cross-examined about a pending criminal charge and in allowing
witness Dalton Moss to testify that, toward the end of the summer of 1990,
Simmons had given Moss a holster and some loose rounds of .44 caliber
ammunition and had requested Moss to hold it for him. Simmons failed to
object to this evidence below. We find no plain error. See, e.g., Post v.
State, 580 P.2d 304, 308 (Alaska 1978).
3. In contending that the arrest and search warrants in his case had been
issued without probable cause, Simmons obliquely asserted that he had been
unconditionally discharged on his prior offenses more than five years
previously. The record provides no indication that Simmons attempted to
pursue this issue as an affirmative defense at trial.
4. U.S. Const. amend. V; Alaska Const. art. 1, 9.
5. See, e.g., United States v. Jones, 533 F.2d at 1391:
It is true that in the case at bar the Government is claiming that Jones
possessed the pistol on three separate occasions, not that continuous
possession existed which has been broken down into arbitrary time periods.
With equal propriety the Government might have charged Jones with
possession on more than 1100 separate days and obtained convictions to
imprison Jones for the rest of his life. The fact that the Government
merely has proof that he possessed the same weapon on three separate
occasions, rather than continuously for a three-year period, should not
dictate the result that Jones could receive three times the punishment he
would face if continuous possession for a three-year period were proved.
There is no proof that there was any interruption in the possession by
Jones of the weapon.
6. See, e.g., Webb v. State, 536 A.2d 1161, 1165 (Md. 1988):
[I]t may be that had Webb removed the weapon from his actual or
constructive possession, it would be a separate violation when he retrieved
it and wore it again on his person. And it may be that if it was shown
that the handgun involved in the first incident was a different weapon from
that involved in the second incident, there would be two violations. But
if any of these circumstances were in fact so, it was incumbent upon the
State at trial to prove the circumstance beyond a reasonable doubt.
7. Later, on rebuttal, the prosecutor argued: "It's our theory, and my
contention, that Mr. Simmons received the gun in April. He maintained
possession of it all the way up until -- at least until September, when he
used it to assault [E.A.]."
8. Upon remand, after giving the state the opportunity to elect the count on
which it prefers to have judgment entered, the superior court should vacate
the remaining conviction.
