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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ARTIE R. COLLINS, )
) Court of Appeals No. A-6724
Appellant, ) Trial Court No. 3AN-S97-77CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1630 - April 9, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Rex Lamont Butler and Dan S.
Bair, Rex Lamont Butler and Associates, Anchorage, for Appellant.
Marcelle K. McDannel, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Artie R. Collins was tried by a jury and convicted of two
counts of fourth-degree misconduct involving a controlled substance,
[Fn. 1] one count of second-degree misconduct involving weapons,
[Fn. 2] and one count of third-degree misconduct involving weapons.
[Fn. 3] On appeal, he maintains that the superior court should have
granted his motions for judgment of acquittal on each count. He
also argues that evidence was erroneously admitted in two areas
causing reversible error. For the reasons discussed below, we
uphold Collins's convictions for possession of cocaine and
possession of an altered firearm and reverse his convictions for
maintaining a crack house and possession of a firearm during the
commission of a felony drug offense.
Facts and proceedings
On January 3, 1997, the Anchorage Police Department
received an anonymous tip that drug sales were occurring at
apartment #10 of the Eagle's Nest Hotel. Police set up surveillance
shortly thereafter and observed five or six people enter that
apartment within a ten-minute period and leave after brief visits.
The police obtained a search warrant for apartment #10.
After 11:00 p.m., the police returned to apartment #10 to
execute the search warrant. David Washington opened the door and
the officers entered. The apartment consisted of two bedrooms, a
living room, a kitchen and a bathroom. Collins was found in the
southwest bedroom. Kimberly Packer and Marilyn Medina were also in
the apartment. Packer appeared to be either under the influence of
cocaine or in cocaine withdrawal.
During the search pursuant to the warrant, the police
seized two handguns from under the same side of the mattress in the
southwest bedroom, one at the foot of the bed, the other at the
head. The serial number on one handgun had been filed off. The
altered handgun, an Acutec .380 caliber, was loaded with two live
rounds. The other handgun, a 9-millimeter Inter Arms Firestar, was
loaded with three live rounds. A box of .380 caliber bullets with
two rounds removed was also found in the southwest bedroom in a
green bag that also contained an eyeglass case and cards that had
Collins's pager number and his alias, Stoney. Collins wore
eyeglasses. When interviewed, Collins admitted that the guns were
his and that he had bought them on the street for $50. No usable
fingerprints were found on either gun. Evidence was presented at
trial that the usual purpose of removing a serial number from a gun
is to render that gun untraceable.
In the closet in the southwest bedroom, the police seized
a black day pack containing a crack pipe, scales, scissors, two
plastic baggies, a piece of plastic wrap, and a bag. The scales
were small, precise, electronic and commonly used for weighing
cocaine. The scales had traces of cocaine on them. From that room,
they also seized papers, a day planner, two cellular phones and two
pagers. The day planner contained a paper that the police described
as a drug-sale record. The planner was identified with the name
"Stoney Mac," a name to which Collins answered, and the name of
"Odessa Watson (Collins)," who was listed as "mother." The planner
contained an entry to propose marriage to "Kimberly" on Christmas.
Packer's fingerprints (but not Collins's) were found on the planner.
Records from the Personal Page showed that a pager belonging to
Collins had received more than 1,000 calls in one month. Police
seized $197 from Collins.
The police also seized various items, including a piece
of a coat hanger, a straw, a knife, and a M&M container with a white
residue from the living room area. The north bedroom yielded a
scale inside a garbage bag. Police also found a copper pipe with
a piece of Chore Boy, a test tube with another piece of Chore Boy,
and two small containers in the north bedroom. A broken "crack
pipe" was found in the kitchen. Collins told police that he resided
in apartment #10.
At trial, Collins, Medina, Packer, and Washington did not
testify. Collins objected to the admission of two purported "drug
ledgers," one found in the day planner, and the other found
elsewhere in the southwest bedroom. He also objected to Judge
Souter's decision to permit certain police officers to testify as
experts. Judge Souter overruled those objections. At the end of
the case, Collins moved for a judgment of acquittal on every count.
Judge Souter denied his motions.
Discussion
Testimony of police officers as experts
On appeal, Collins maintains that evidence from two police
officers was erroneously admitted over his objection.
Officer Pam Nelson was asked why a serial number would be
removed from a firearm. Collins objected that the answer called for
speculation. After that objection was overruled, Nelson testified
that a serial number might be removed from a firearm to render it
untraceable. Collins renews his argument that the testimony was
speculative. We conclude that Judge Souter did not abuse his
discretion when he permitted that testimony over Collins's
objection. [Fn. 4] Officer Nelson's testimony based on her
experience and training with handguns was not speculative.
Collins now maintains that Officer Nelson offered expert
testimony without proper qualification by the court to testify as
an expert witness. But Collins did not make that objection to
Officer Nelson's testimony in the trial court. Therefore, he did
not preserve that issue for appeal.
Collins also objected to certain questions put to
Detective Bruce Bryant on the basis that his answers would lack
foundation, be speculative, irrelevant, or would call for hearsay.
Collins also objected to the State's question posed to Detective
Bryant regarding what consistencies he noted between this case and
other "crack houses" he had seen in the past.
DEFENSE COUNSEL: I'm going to object as to
discovery.
THE COURT: Object as to discovery?
DEFENSE COUNSEL: Yes, sir.
THE COURT: I didn't hear where that called for
any sort of discovery. The objection is overruled.
Collins did not raise the issue again, nor did he ask for any form
of relief.
On appeal, Collins argues that Detective Bryant's
testimony about the similarity of other crack houses to the Eagle's
Nest apartment was expert testimony that was presented without
notice or discovery under Criminal Rule 16. He asserts that Alaska
Rule of Criminal Procedure 16(b)(1)(B) required discovery of this
testimony. [Fn. 5] But it is not clear to us that Criminal Rule
16(b)(1)(B) applies to police officers, like Bryant, who testify to
their on-the-scene observations and conclusions based on their
training and experience. Even so, Collins did not articulate to the
trial court how the purported discovery violation prejudiced his
defense. [Fn. 6] Nor did he ask for any specific relief other than
objecting to the question put to Bryant. Collins argues that Judge
Souter implicitly denied all relief, including a request for a
continuance, when he overruled the objection as to discovery. We
disagree.
If the defense claims a mid-trial discovery violation, the
defendant must present the trial court with a plausible claim of
prejudice and request appropriate relief. If a continuance is not
requested for a purported discovery violation, this ordinarily
waives any claim that a continuance should have been granted. [Fn.
7] Collins did not request any specific relief to address the
purported discovery violation. We conclude that this issue was
waived.
Admission of day planner and drug ledgers
Collins next argues that certain documents admitted at
trial, a day planner and the two sheets of paper described as drug
ledgers, were erroneously admitted over his hearsay objection. He
claims the State offered the exhibits for the truth of the matter
asserted. The two sheets were described by the court as "a list of
numbers and names, and from that the jury can reasonably draw an
inference that it's a list of customers[.]" Collins also claims
that the papers were admitted without sufficient foundation, that
is, that there was inadequate proof that Collins authored the
documents. He also argues that the documents were not admissible
under the business record exception to hearsay. [Fn. 8] Judge
Souter admitted the documents not for the truth of the matter
asserted, but as relevant circumstantial evidence of drug
transactions occurring on the premises. In other words, the
documents were circumstantial evidence that controlled substances
were distributed in the Eagle's Nest apartment.
Collins relies on United States v. Arteaga, [Fn. 9] as
support for his argument. In Arteaga, the trial court admitted "to-
send-money" and "to-receive-money" forms from Western Union in a
money-laundering scheme where proceeds of cocaine sales in Alaska
were wired to California. The district court first admitted the
forms under Federal Rule of Evidence 803 as business records and
later stated that the forms were admissible under the catch-all
hearsay exception because the forms had circumstantial guarantees
of trustworthiness. In the face of objections from the defendants
in the case, the district court ultimately ruled that the forms were
admitted not for the truth of the matters on the forms. The Arteaga
court recognized that that ruling eliminated the hearsay objections
and recognized that the forms at issue in that case that were found
in Arteaga's home were circumstantial evidence of the charged
criminal conduct. [Fn. 10]
Although Collins argues that the documents in question
were admitted for the truth of the matter asserted, that was not
Judge Souter's announced ruling. The documents in question here
were admitted as circumstantial evidence of cocaine transactions on
the premises.
Many courts have allowed the introduction of "drug
ledgers" not for the truth of the entries on the ledgers, but as
circumstantial evidence that drug-related activities were occurring
on the premises where the records were found. In United States v.
Wilson, the court ruled that certain records that were found on the
premises where the prosecution alleged that drug trafficking was
occurring were admissible as circumstantial evidence that drug
trafficking was occurring on the premises. [Fn. 11] "The evidence,
however, did tend to show that the apartment was being used for drug
trafficking." [Fn. 12] Also, in United States v. Jaramillo-Suarez,
[Fn. 13] the court, following Wilson, approved the introduction of
"pay/owe" sheets as circumstantial evidence of drug trafficking in
the apartment where they were found:
The pay/owe sheet in the present case was
admitted for the specific and limited purpose of showing the
character and use of the [ ] apartment. . . . Because the pay/owe
sheet's probative value for the limited purpose for which it was
admitted was independent of the truth of its contents, the rule
against hearsay was not implicated[.] [Fn. 14]
Similarly, in United States v. Enriquez-Estrada, [Fn. 15] the court
approved the introduction of a drug ledger to show the nature of the
use of the residence where the ledger was found. [Fn. 16] And in
People v. Harvey, [Fn. 17] the court upheld the non-hearsay use of
drug ledgers found in homes connected to the defendants as
circumstantial evidence of cocaine sales and a cocaine conspiracy.
[Fn. 18]
We conclude that it was not an abuse of discretion for
Judge Souter to admit the contested documents as circumstantial
evidence of drug activity because the issue of trafficking in
controlled substances is a material issue to count II.
Collins raises another issue relating to the documents in
question. He argues that during the prosecutor's final argument,
the prosecutor used information in the drug ledgers for the truth
of the matter asserted. Because the prosecutor purportedly used
that information for the truth of the matter asserted when it was
not admitted for the truth of its contents, Collins argues that his
conviction should be reversed. He relies on United States v. Lai.
[Fn. 19] In Lai, the trial court admitted the drug
records as circumstantial evidence of Lai's alleged criminal drug
activity. But in Lai, the government conceded that the documents
were used to prove particular drug transactions that were elements
of the conspiracy count that was charged. The Lai court concluded
that the records were hearsay and proper foundations for the records
were required. [Fn. 20] Because the district court had not
addressed the foundation for admission of the records as hearsay,
the court did not reverse Lai's conviction, but remanded the case
to the district court for a hearing on whether there was a proper
basis for the admission of those records. [Fn. 21]
Collins has not claimed nor has the State conceded that
the use of the documents in question for the truth asserted in the
documents was necessary to establish an element of one of the
charged counts. And Collins never objected to any portion of the
prosecutor's argument. Because he did not object to the claimed
misuse of the evidence during argument, he has not preserved that
issue for appeal. Finally, Collins has not claimed that the
prosecutor's final argument created plain error.
Sufficiency of the evidence
Collins claims that Judge Souter erred when he denied his
motion for judgment of acquittal on each count. When a defendant
attacks a conviction for insufficiency of the evidence, we must view
the evidence presented, and reasonable inferences from the evidence,
in the light most favorable to upholding the jury's verdict. [Fn.
22] Viewing the evidence from this perspective, we must decide
whether a fair-minded juror exercising reasonable judgment could
conclude that the State met its burden of proving guilt beyond a
reasonable doubt. [Fn. 23]
 Possession of cocaine
Collins stipulated that there was cocaine residue on
various items in the apartment, including on the scales, on various
crack pipes, and on other paraphernalia found in his residence. The
police described the various items of paraphernalia found around the
apartment that were typically used for marketing cocaine and crack
cocaine. In addition, the prosecution presented evidence that
Collins had a pager through Personal Page on which he had received
more than a thousand pages in a month. The prosecution showed the
jury the cards that had the pager number issued to Collins along
with his alias, Stoney Mac. The two loaded handguns (that Collins
admitted were his) were found under the mattress of the bed in the
room where Collins was found when the police entered. The
prosecution presented testimony that it was consistent with the
retail distribution of cocaine to have readily available firearms.
While most of the evidence that was presented relating to
this count was circumstantial, the jury was entitled to make
reasonable inferences from that evidence and conclude that Collins
possessed cocaine. While it was also possible for the jury to infer
that other occupants of the apartment were the ones who possessed
the cocaine, and not Collins, the jury was permitted to reject those
conclusions and agree that the prosecution had proven the count
beyond a reasonable doubt.
 Keeping or maintaining a "crack house" andpossession of a firearm during commission of a
felony drug offense
We conclude that Collins's conviction on these counts must
be reversed for the reasons expressed in Judge Mannheimer's
concurring opinion.
Possession of an altered firearm
Finally, Collins maintains that there was insufficient
evidence to show that he knew that the handgun with the serial
number removed had been altered with intent to render it
untraceable. As we noted above, Collins admitted that the two
handguns were his. He also said that he purchased both handguns "on
the street" for $50. The altered handgun was admitted into evidence
and the jury was allowed to examine where the serial number had been
obliterated. The prosecution also presented evidence from two
police officers that the removal of a serial number from a weapon
exhibited an intent to render that firearm untraceable.
Collins maintains that the State was required to present
evidence that he possessed the handgun with the specific intent that
the weapon be untraceable. We disagree. Alaska Statute
11.61.200(a)(6) provides that a person commits third-degree weapons
misconduct when the person:
possesses a firearm on which the manufacturer's
serial number has been removed, covered, altered, or destroyed,
knowing that the serial number has been removed, covered, altered,
or destroyed with the intent of rendering the firearm untraceable[.]
Under this statute, the State must prove, first, that someone had
removed the serial number with the intent to render the firearm
untraceable, and, second, that Collins acted "knowingly" [Fn. 24]
with respect to this circumstance.
From our review of the record, we conclude that reasonable
jurors could agree that the prosecution had proven this count beyond
a reasonable doubt. Collins purchased both handguns, including the
altered handgun, on the street from a person he did not know for
$50. The jury was entitled to infer that he loaded the altered
handgun and hid it under the mattress in the bedroom. The jury also
had the testimony that a purpose for the obliteration or removal of
a serial number on a firearm is to render the firearm untraceable
and could infer from the circumstances of Collins's purchase and
possession of the handgun that he knew the serial number had been
removed from the firearm in order to render it untraceable.
Conclusion
For the reasons explained here, we AFFIRM Collins's
convictions for possession of cocaine and possession of an altered
firearm. We REVERSE his conviction for maintaining a crack house
and REMAND for entry of a judgment of acquittal on that count. We
REVERSE Collins's conviction of possession of a firearm during the
commission of a felony drug offense and REMAND for a new trial on
that count.
MANNHEIMER, Judge, concurring.
Two of Collins's convictions must be reversed: his
conviction under AS 11.71.040(a)(5) for maintaining a structure used
for storing or distributing controlled substances (the "crack house"
statute), and his conviction under AS 11.61.195(a)(1) for possessing
a firearm during the commission of a felony drug offense.
Collins's conviction for maintaining a crack house must
be reversed because the State failed to present sufficient evidence
to support a finding that Collins controlled the motel suite where
he and the drugs were found. Collins's conviction for possessing
a firearm during the commission of a felony drug offense must be
reversed because the jury was not instructed (and thus made no
finding) concerning an essential element of this offense: the
requirement of a nexus between the defendant's possession of the
firearm and the defendant's commission of the drug felony.
The conviction for maintaining a building used for storing
or distributing controlled substances
The crack house statute, AS 11.71.040(a)(5), requires
proof that the defendant kept or maintained some type of "structure"
for storing or distributing controlled substances. The statute
declares that a person commits the offense if he or she:
knowingly keeps or maintains any store, shop,
warehouse, dwelling, building, vehicle, boat, aircraft, or other
structure or place that is used for keeping or distributing
controlled substances in violation of a felony offense under [AS
11.71] or AS 17.30[.]
The indictment against Collins charged him with maintaining a
"dwelling or building". The State's theory was that Collins kept
or maintained the motel room (really, a motel suite) where he and
his three housemates were living and where the drugs were found.
This motel suite was both a "dwelling" and a "building"
as these terms are defined in AS 11.81.900(b). Under AS 11.81.-
900(b)(20), "dwelling" means a particular kind of building "a
building that is designed for use or is used as a person's permanent
or temporary home or place of lodging". And, under the definition
of "building" contained in AS 11.81.900(b)(3), each separate
apartment or office in a multi-unit structure is considered a
"building".
The motel suite shared by Collins and his housemates was
a separate apartment in a multi-unit structure. Thus, if the State
had proved that Collins controlled that motel suite, this would have
been sufficient proof that Collins kept or maintained a "building"
and a "dwelling".
But the State failed to prove this. The State's evidence
showed that Collins lived in the motel suite but it also showed
that three other people lived in the suite. The State did not
produce rent receipts, a lease, or any other evidence to show that
Collins (or any of the other three housemates, for that matter) had
either legal or actual authority to control the premises authority
to decide who would reside there and to control what occurred on the
premises.
When Collins moved for a judgement of acquittal on this
charge, Judge Souter recognized this flaw in the State's evidence.
Addressing the prosecutor, Judge Souter said:
[T]he question I've got here is the "keeping
and maintaining" [element of the offense]. ... [I]n order to prove
that [element], the State ... has to show that the defendant
controlled or had the right to control the premises. And, other
than his [statement] that he lived there, what else is there, [Mr.
Prosecutor]?
In response to the judge's question, the prosecutor presented two
arguments.
The prosecutor first argued that the State did not have
to prove that Collins had sole control of the motel suite; it would
be sufficient if he exercised joint control with one or more of his
housemates. This may be correct, but it does not help the State's
position because the State failed to present evidence of anyone's
control of the premises.
The prosecutor next argued that, even if the State failed
to prove who controlled the motel suite, the State's evidence did
tend to show that drugs had been stored and distributed in the south
bedroom of the suite, the bedroom where Collins slept. The
prosecutor contended that the State's case could go to the jury
under the theory that Collins "controlled" the south bedroom.
Judge Souter accepted this second argument:
Well, ... the hotel room ... was really a
hotel suite, not just a room. ... [T]he testimony [shows that]
there were two bedrooms and a living area. So it's a hotel suite.
And there were four people [living] there ... , the defendant and
three others. And the only testimony that ties the defendant to the
[premises] is the testimony of the police that he was found ... in
the south bedroom, where a number of his personal belongings ...
were [also] found. And his statement that he lived there.
I've got to draw all reasonable inferences
in favor of the State. ... [G]iven the fact that he had his
personal belongings in there, including some guns that were under
the mattress, it's pretty apparent that he was controlling the
bedroom. I mean, ... he had his stuff in there, and two guns under
the mattress ... . [That is] evidence from which the jury could
reasonably infer that he was in control of the room. ... [S]o I'm
going to deny the motion for judgement of acquittal[.]
This ruling was error.
The first difficulty in the State's "bedroom" theory is
that Collins's physical occupancy of the south bedroom does not
amount to the legal control required by the crack house statute.
Whoever was leasing or renting the motel suite would normally
"control" all rooms and areas within the suite (in the sense of
having the legal authority to decide who lived there and what went
on there). The State presented no evidence as to the identity of
the person or persons who leased or rented the motel suite. By the
same token, the State presented no evidence that Collins had a
subleasing agreement with the unidentified lease-holder of the
suite. The mere fact that Collins lived in the south bedroom did
not place him in "control" of that bedroom.
Equally important, even if the State's evidence had
established that Collins exercised legal control over the south
bedroom, this would not be sufficient to prove a violation of the
crack house statute. The statute requires proof that the defendant
kept or maintained a "structure" in Collins's case, the "dwelling"
or "building" cited in the indictment. As explained above,
apartments and motel suites are "buildings" and "dwellings" for
purposes of Title 11. But the separate bedrooms within apartments
and motel suites are not. [Fn. 1]
Judge Souter should have granted Collins's motion for
judgement of acquittal. Instead, he allowed this charge to be
presented and argued to the jury under an improper legal theory.
On appeal, the State pursues a different theory to justify
Collins's conviction. The State argues that Collins "controlled"
the motel suite because he was a drug dealer living among drug
addicts, and because he was the only resident who possessed
firearms. From this, the State concludes that Collins was socially
dominant among the four residents of the suite: he could manipulate
the others by cutting off their supply of cocaine, and he could
exercise "brute authority to have the final word in any discussion
with [his] unarmed [housemates]".
Whether Collins "controlled" his housemates in this
fashion is irrelevant. The crack house statute requires proof that
Collins kept or maintained the premises the motel suite. As we
held in Dawson v. State, this statute requires proof that the
defendant "control[led] or ha[d] authority to control the use or
occupancy of the structure". [Fn. 2]
One can speculate that Collins was in a position to
exercise physical or psychological control over his three
housemates, to the point where they would acquiesce in whatever he
chose to do in his bedroom. But this would be only speculation, for
the State raises this factual issue for the first time on appeal.
The State did not argue its case this way at trial, and the jury was
not asked to convict Collins under this theory. Moreover, even if
Collins had exercised physical or psychological dominance over the
other three residents of the motel suite, this does not establish
that Collins "ke[pt] or maintain[ed]" the premises the element
of proof required by the crack house statute.
For these reasons, we conclude that Collins's conviction
for violating the crack house statute must be reversed.
The conviction for possessing a firearm during the
commission of a drug felony
Collins was charged with violating AS 11.61.195(a)(1),
which prohibits a person from "possess[ing] a firearm during the
commission of an offense under AS 11.71.010 - 11.71.040". The State
presented evidence that Collins possessed cocaine and that Collins
had two firearms hidden under his mattress facts that seemingly
established a violation of the statute.
The jury was indeed instructed that this evidence, by
itself, was sufficient to establish a violation of the statute.
Jury Instruction 17 told the jury that, to prove a violation of
AS 11.61.195(a)(1), the State had to establish only the following
two elements:
First, that the event in question occurred
at or near Anchorage and on or about January 3, 1997; and
Second, that Artie R. Collins knowingly
possessed a firearm during the commission of a felony drug offense
as charged in Counts I and II of the indictment.
The felony drug offenses named in Counts I and II of the indictment
were: (1) possessing cocaine, and (2) keeping or maintaining a
dwelling or building for storing or distributing controlled
substances. The jury instructions contained no further explanation
of the phrase "during the commission of a felony drug offense".
After the jury convicted Collins of this crime, Collins
filed what he called a motion for "judgement of acquittal". Collins
argued that mere possession of a firearm during the commission of
a drug felony was not sufficient to establish a violation of AS
11.61.195(a)(1). Rather, Collins argued, the statute required proof
of some connection between the firearm and the drug offense.
(a) Proper characterization of Collins's motion
It is important to note that Collins's motion was not
actually a "motion for judgement of acquittal" even though Judge
Souter and both parties referred to it by this label in the trial
court, and even though both parties continue to refer to it this way
on appeal. Collins's basic contention was and is that the
offense of possessing a firearm during the commission of a felony
drug offense requires proof of one additional element: a nexus
between the weapon and the drug offense. This element was not
alleged in the indictment, and the jury instructions made no mention
of it; thus, the jury never decided this asserted element of the
offense.
If Collins is correct, then he is entitled to dismissal
of the indictment and a new trial, but he would not be entitled to
a judgement of acquittal. This is true because, had Judge Souter
granted Collins's motion, this would have been a dismissal on legal
grounds that is, dismissal on a ground not requiring factual
resolution of any of the elements of the offense. Such a dismissal
"does not amount to a judgment of acquittal, regardless of its
timing or the label attached thereto." State v. Martushev. [Fn.
3]
For example, in Steve v. State [Fn. 4], a defendant filed
a post-trial "motion for judgement of acquittal" after he was
convicted of second-degree sexual abuse of a minor (having sexual
relations with a child under the age of 16). At trial, Steve had
asserted the affirmative defense of reasonable mistake: he claimed
that he reasonably believed his sexual partner was older than 16.
The jury rejected this affirmative defense. In his post-trial
motion, Steve asserted that he had been denied due process because
the jury instructions (in accord with the statute) required him to
prove this defense by a preponderance of the evidence. Steve
claimed that, as a matter of constitutional law, it was the
government's burden to disprove his asserted defense beyond a
reasonable doubt. [Fn. 5]
We held that, because Steve was attacking his conviction
on a legal ground that did not require resolution of any of the
facts of the case, his pleading was not a "motion for judgement of
acquittal", and the granting of his motion would not preclude the
State from re-trying him:
[I]f the defendant convinces an appellate court
that the trial court adopted an erroneous definition of the offense
or misallocated the burden of proof, this conclusion necessarily
undermines the assumption that the government had its fair day in
court. We can not know what evidence the State might have presented
at [the defendant's] trial if it had known [the true elements of the
offense or that] the State bore the burden of proof on the
[disputed] issue[.]
Steve, 875 P.2d at 115. Thus, if the defendant prevails on such a
motion, the defendant is "entitled to a new trial, not an outright
acquittal". [Fn. 6]
The holdings in Martushev and Steve apply to Collins's
"motion for judgement of acquittal". Collins's argument concerned
the legal definition of the offense; in essence, he claimed that the
indictment failed to allege each essential element of the crime and
that the jury was not asked to decide each essential element. Thus,
if Collins prevailed in his motion, the State would be able to re-
indict and re-try Collins, attempting to establish this additional
element of the crime.
(b) Proper resolution of Collins's claim
When Collins's motion was first argued, Judge Souter
expressed preliminary agreement with Collins's construction of the
statute. The judge declared that he did not think the legislature
intended to inflict separate felony punishment on people who
possessed or used drugs at one location (for example, in a
restaurant or at a cabin) and who happened to possess a firearm at
home. Nevertheless, Judge Souter took the matter under advisement.
He invited the parties to file supplemental briefs on (1) the
meaning of the statute and (2) how the State's evidence at Collins's
trial either established or failed to establish a violation of the
statute.
In its supplemental brief, the State conceded that Collins
and Judge Souter were right: the statute required more than simply
proof that a person possessed cocaine and simultaneously owned a
firearm. The State admitted that AS 11.61.195(a)(1) required proof
of some nexus between the firearm and the drug offense. However,
relying on federal cases, the State argued that the statute did not
necessarily require proof that the defendant used or threatened to
use the firearm during the drug offense. Rather, the State argued,
the offense could be established by proof that, because a firearm
was nearby and available, the defendant was "emboldened" to commit
the felony drug offense. The State further argued that, viewing the
evidence at Collins's trial in the light most favorable to the
State, this required nexus was proved in Collins's case because
the evidence suggested that Collins dealt drugs in the bedroom where
the firearms were found.
Based on the arguments presented in the State's
supplemental brief, Judge Souter denied Collins's motion for
judgement of acquittal.
Judge Souter's ruling is troublesome. In the State's
supplemental brief to Judge Souter, the State conceded that the
crime required proof of an additional element proof of a nexus
between the firearm and the felony drug offense. Even assuming that
the State presented enough evidence at Collins's trial to prove this
additional element, the fact remains that the indictment did not
allege this element, the jury was never instructed on this element,
and the jury made no finding with regard to it. Because of this,
Collins's conviction was flawed. [Fn. 7] Although Collins was not
entitled to a judgement of acquittal, Judge Souter's ruling
necessarily meant that Collins was entitled to dismissal of the
indictment and a new trial.
Now, on appeal, it appears that the State has recognized
this problem. In its brief to this court, the State disavows the
construction of the statute adopted by the trial prosecutor and by
Judge Souter. The State claims that no nexus must be proved between
the firearm and the drug felony; instead, the State argues that the
offense is committed whenever someone simultaneously commits a drug
felony and possesses or exercises control over a firearm even a
firearm located in another place. According to the State, "[t]he
only nexus required by the statute is one [of] time: possession [of
the firearm] must coincide at some point in time with the commission
of a felony drug offense."
We find ourselves in agreement with Judge Souter and the
trial prosecutor on this issue. Possession of cocaine is a felony
drug offense a class C felony, carrying a maximum penalty of
5 years' imprisonment. [Fn. 8] Possession of a firearm during the
commission of a felony drug offense is a more serious crime; it is
a class B felony, carrying a maximum penalty of 10 years'
imprisonment. [Fn. 9] Even though the wording of AS 11.61.195(a)(1)
could be interpreted in the fashion urged by the State in this
appeal, it seems quite unlikely that the legislature intended to
double or, if the defendant receives consecutive sentences, even
triple the penalty for possession of cocaine whenever a cocaine user
also happens to be a gun owner.
When interpreting statutes, it is this court's duty to
shun interpretations that lead to absurd results. [Fn. 10] We agree
with Judge Souter that, unless AS 11.61.195(a)(1) is interpreted to
require some nexus between the possession of the firearm and the
commission of the felony drug offense, the statute leads to
inexplicably draconian penalties for run-of-the-mill drug possession
offenses.
For these reasons, we conclude that AS 11.61.195(a)(1)
requires proof of a nexus between a defendant's possession of the
firearm and the defendant's commission of the felony drug offense.
We need not define the exact contours of this required nexus at this
time. To resolve Collins's appeal, it is sufficient to note that
the indictment returned against Collins did not allege this element
of the offense and the jury at Collins's trial made no finding with
respect to this element. Collins's indictment and conviction for
possessing a firearm during the commission of a drug felony must
therefore be reversed.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(3)(A) and (a)(5).
Footnote 2:
AS 11.61.195.
Footnote 3:
AS 11.61.200(a)(6).
Footnote 4:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
Footnote 5:
Criminal Rule 16(b)(1)(B) provides:
(B) Expert Witnesses. Unless a different
date is set by the court, as soon as known and no later than 45
days prior to trial, the prosecutor shall inform the defendant of
the names and addresses of any expert witnesses performing work in
connection with the case or whom the prosecutor is likely to call
at trial. The prosecutor shall also make available for inspection
and copying any reports or written statements of these experts.
With respect to each expert whom the prosecution is likely to call
at trial, the prosecutor shall also furnish to the defendant a
curriculum vitae and a written description of the substance of the
proposed testimony of the expert, the expert's opinion, and the
underlying basis of that opinion. Failure to provide timely
disclosure under this rule shall entitle the defendant to a
continuance. If the court finds that a continuance is not an
adequate remedy under the circumstances of the case, the court may
impose other sanctions, including prohibiting the prosecutor from
calling the expert at trial or declaring a mistrial.
Footnote 6:
See Bostic v. State, 805 P.2d 344, 348-49 (Alaska 1991); Jurco
v. State, 825 P.2d 909, 916-17 (Alaska App. 1992).
Footnote 7:
See Scharver v. State, 561 P.2d 300, 302 (Alaska 1977).
Footnote 8:
Alaska Rule of Evidence 803(6).
Footnote 9:
117 F.3d 388 (9th Cir.), cert. denied, 118 S.Ct. 455 (1997).
Footnote 10:
See id. at 397-98.
Footnote 11:
See Wilson, 532 F.2d 641, 645-46 (8th Cir. 1976).
Footnote 12:
Id.
Footnote 13:
950 F.2d 1378 (9th Cir. 1991).
Footnote 14:
Id. at 1383.
Footnote 15:
999 F.2d 1355 (9th Cir. 1993).
Footnote 16:
See id. at 1360.
Footnote 17:
285 Cal. Rptr. 158 (1991).
Footnote 18:
See id. at 167-68.
Footnote 19:
944 F.2d 1434 (9th Cir. 1991).
Footnote 20:
See id. at 1445.
Footnote 21:
See id.
Footnote 22:
See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Footnote 23:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)
(citations omitted).
Footnote 24:
See AS 11.81.900(a)(2).
FOOTNOTES (Concurrence)
Footnote 1:
One could conceivably argue that, because AS 11.71.040(a)(5) speaks of "any
... structure or place", the statute may have been intended to apply to
individual rooms within apartments or motel suites. However, given the list of
structures and places included in AS 11.71.040(a)(5), this does not appear to be
a likely construction of the statute.
This issue of statutory interpretation need not be addressed for two
reasons. First, the State does not raise this argument on appeal. Second, the
jury instructions in Collins's case did not allow the jury to convict him under
the theory that he kept or maintained a "place" as opposed to a "structure".
Instruction 16(a) told the jury:
A person keeps or maintains a building, dwelling[,] or
other structure or place if: 1) the person knowingly uses or allows another to
use the building, dwelling[,] or other structure for a business operation
involving the keeping or distributing of one or more controlled substance[s];
2) the keeping or distributing of the controlled substance(s) is a felony in
violation of AS 11.71; and 3) the person, either alone or with others, controls
or has the right to control the building, dwelling[,] or other structure[.]
Footnote 2:
894 P.2d 672, 676 (Alaska App. 1995).
Footnote 3:
846 P.2d 144, 148 (Alaska App. 1993).
Footnote 4:
875 P.2d 110 (Alaska App. 1994).
Footnote 5:
See id. at 114-15.
Footnote 6:
Id.
Footnote 7:
A trial judge is under a duty to instruct the jury on all essential
elements of the offense. See Thomas v. State, 522 P.2d 528, 531 n.11 (Alaska
1974); Sears v. State, 713 P.2d 1218, 1219 (Alaska App. 1986). It is plain error
when instructions fail to inform the jury of all the essential elements of an
offense, unless the record as a whole establishes that the incomplete jury
instructions had no significant influence on the jury's decision. See S.R.D. v.
State, 820 P.2d 1088, 1095-96 (Alaska App. 1991).
Footnote 8:
AS 11.71.040(a)(3)(A), AS 11.71.040(d), AS 11.71.150(c), AS 12.55.125(e).
Footnote 9:
AS 11.61.195(a)(1), AS 11.61.195(b), AS 12.55.125(d).
Footnote 10:
See Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992).
