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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHEILA WAHRER, )
) Court of Appeals No. A-5148
Appellant, ) Trial Court No. 3AN-92-9326 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1427 - August 18, 1995]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Rene J. Gonzalez, Judge.
Appearances: Sharon Barr, Assistant Public Advocate,
and Brant G. McGee, Public Advocate, Anchorage, for Appellant.
Kenneth M. Rosen-stein, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
Sheila Wahrer appeals her conviction for fourth-degree
misconduct involving a controlled substance, AS 11.71.040(a)(5).
She contends that the trial judge misinstructed the jury
concerning an element of this offense. We find that the
challenged jury instruction was proper, and we therefore affirm
Wahrer's conviction.
The statute Wahrer was convicted of violating, AS 11.
71.040(a)(5), forbids a person to
knowingly keep[] or maintain[] any ...
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 [AS
11.71] or AS 17.30[.]
At Wahrer's trial, the State asserted that Wahrer had maintained
an apartment in the Mountain View area of Anchorage that was
being used as a "crack house" _ a place where cocaine was
prepared and sold. Viewed in the light most favorable to the
State, the evidence at trial showed that Wahrer, using a false
name, rented the apartment and then allowed various individuals
to use the premises as the site of a cocaine business.
Wahrer defended by contending that she rented the
apartment so that a man named "Ray" could live there. Wahrer
testified that she barely knew "Ray", but she was interested in
getting to know him better. She asserted that she had rented the
apartment for Ray out of friendship, and that she had no idea
that the apartment was being used for drug sales. Wahrer
explained that she, rather than Ray, had rented the apartment
because she believed that a landlord would be more likely to rent
to her (a white woman) than to Ray (a black man). She said that
she had used false identification because she was nineteen years
old and she believed that she could not legally rent an apartment
unless she was twenty-one.
At the close of trial, when the court was formulating
the jury instructions, both the parties and the court struggled
over the definition of "keep or maintain" a building. Superior
Court Judge Rene J. Gonzalez ultimately decided to give the
following instruction (over Wahrer's objection):
A person keeps or maintains a building,
dwelling, or other structure or place if that
person [either] conducts business operations
or knowingly allows others to conduct
business operations in a building [or] place
which that person controls or had the right
to control either through ownership or lease.
Said business may be either legal or illegal.
Wahrer objected that the court's definition of
"maintaining" suggested that this element could be satisfied by
proof of a defendant's passive and purely legal relationship to
the premises _ that Wahrer could be found guilty simply because
she signed the lease for the apartment. Wahrer contended that
the statute required that the defendant have a more active
relationship to the premises _ one involving the exercise of
control, not mere legal title. Wahrer's attorney proposed the
following instruction:
To keep or maintain a dwelling,
building, or other structure ... means to
take care of, support, conduct, or manage a
structure or place for some particular
purpose.
Judge Gonzalez rejected this instruction, but he informed
Wahrer's attorney that the defense would be entitled to argue to
the jury that, even though Wahrer signed the lease, Wahrer
nevertheless had no right to control the activities taking place
at the apartment.
On appeal, Wahrer renews her argument that the
challenged jury instruction was improper. She argues that, under
the court's instruction, the jury might have convicted Wahrer
even if they believed that her only connection to the apartment
was that she signed the lease and then relinquished control over
the premises to Ray and his associates. The short answer to
Wahrer's argument is that, once she secured the lease, even if
she later chose to relinquish control of the apartment to Ray and
the others, she still might properly be convicted.
In Dawson v. State, 894 P.2d 672 (Alaska App. 1995),
this court recently analyzed the meaning of the statute in
question, AS 11.71.040(a)(5). We concluded that the statute
requires proof that the defendant "knew" (as defined in
AS 11.81.900(a)(2)) that the premises were being used for
continuing illegal drug activity. Dawson, 894 P.2d at 677. We
also concluded that the statutory phrase "keeps or maintains"
refers to a defendant's possessing "control or hav[ing] authority
to control the use or occupancy of the structure". Id. at 676.
With the hindsight of Dawson, it can be seen that Judge
Gonzalez correctly rejected Wahrer's proposed instruction
concerning "keep or maintain". Under Wahrer's proposed
definition, the jury could not have convicted her unless they
found (a) that she actively took care of or managed the
apartment, and (b) that she did so with the intention that the
apartment be used as a site for the sale of illegal drugs.
(Wahrer's proposed instruction defined "keep or maintain" as
"tak[ing] care of, support[ing], conduct[ing], or manag[ing] a
structure or place for some particular purpose".)
As Dawson clarifies, AS 11.71.040(a)(5) does not
require proof that the defendant actively controlled or
participated in the illegal drug activity, nor does the statute
even require proof that the defendant shared the purpose of
advancing the illegal drug activity. Rather, the State must
prove that the defendant knowingly permitted the illegal drug
activity to take place on the premises. The defendant's act of
permitting the illegal drug activity may be proved by evidence of
the defendant's express authorization, but it may also be proved
by evidence that the defendant allowed the illegal drug activity
to proceed by "tacit consent or by not hindering [or by] taking
no steps to prevent [it]". Dawson, 894 P.2d at 677 n.5 (quoting
State v. Pyritz, 752 P.2d 1310, 1313 (Or. App. 1988).
In Wahrer's case, the State was obliged to prove that
Wahrer had sufficient control over the apartment that she could
have prevented its use as a site for cocaine sales had she
wished. The State introduced evidence that Wahrer was the
leaseholder of the apartment and that Ray and the other occupants
of the apartment were, essentially, tenants at her sufferance.
This evidence, if believed, was sufficient to prove that Wahrer
"kept or maintained" the apartment within the meaning of AS
11.71.040(a)(5). The State was not required to prove that Wahrer
managed or otherwise actively controlled the apartment _ only
that she had the authority to control the premises if she chose
to exercise it.
Judge Gonzalez's instruction to the jury embodied this
interpretation of the statute. The court's instruction told the
jurors that the element of "keep or maintain" was satisfied if
the State proved that Wahrer (a) "knowingly allowed" (that is,
Wahrer was aware of and permitted) (b) other people to conduct
"business operations" (in this case, continuing sales of cocaine)
(c) in an apartment that she either "control[led] or had the
right to control ... through ... lease". We find no error in
this instruction.1
The judgement of the superior court is AFFIRMED.
_______________________________
1 As we recognized in Dawson, and as the parties to the present appeal concede,
most of the important terms in AS 11.71.040(a)(5) have no express statutory
definition, and there is a paucity of legislative history to aid in
analyzing the statutory language. It is one thing for an appellate court
to construe this statute after weeks of deliberation, quite another when a
trial judge is called upon to construe the statute in the press of an
ongoing trial. We commend Judge Gonzalez for his careful analysis of the
statute.
