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Walker v. State (11/19/99) ap-1653

     NOTICE:  The text of this opinion can be corrected before
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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DALE R. WALKER,               )
                              )          Court of Appeals No. A-6994
             Appellant,       )       Trial Court No. 4FA-S97-2939CR
                              )
          v.                  )          
                              )
STATE OF ALASKA,              )            O P I N I O N 
                              )
             Appellee.        )       [No. 1653 - November 19, 1999] 
______________________________)


          Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Neisje J. Steinkruger, Judge.

          Appearances:  William R. Satterberg, Jr., and
James E. McLain,  Law Offices of William R. Satterberg, Jr.,
Fairbanks, for Appellant.  Douglas H. Kossler, 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.
          COATS, Chief Judge, concurring.
          Two police officers went to Dale R. Walker's home in
Fairbanks to "knock and talk" because an anonymous informant reported
that marijuana was growing inside his home.  Walker showed the
officers a bag of marijuana and his indoor marijuana garden that
included twenty-six large marijuana plants, seven smaller plants,
seventy seedlings, and grow lights.  
          The grand jury indicted Walker on one count of fourth-
degree misconduct involving controlled substances for possessing 25
or more marijuana plants. [Fn. 1]  Walker moved to dismiss that
charge claiming that the statute infringed on the right to privacy
recognized in Ravin v. State. [Fn. 2]  The superior court denied
Walker's motion.  
          At trial, the jury convicted Walker of a lesser offense,
fifth-degree misconduct involving controlled substances   possession
of eight or more ounces of marijuana. [Fn. 3]  On appeal, Walker
claims that this statute is also unconstitutional under Ravin. 
          Proceedings
          At trial, Walker asked Superior Court Judge Niesje J.
Steinkruger to instruct the jury on the lesser offenses of fifth-
degree misconduct involving controlled substances (possessing
one-half pound or more of marijuana) and sixth-degree misconduct
involving controlled substances (for possessing less than one-half
pound of marijuana). [Fn. 4]  Judge Steinkruger granted Walker's
request and instructed the jury on both of those lesser offenses. 
The jury convicted Walker of  possessing one-half pound or more of
marijuana, the first lesser offense proposed.  This appeal followed. 
          Discussion
          Did Walker waive his claim in the superior court?
          The State claims that Walker waived his claim in the
superior court.  The State argues that Walker never objected to the
constitutionality of the offense that the jury convicted him on
(only objecting to the constitutionality of the felony that the
State had charged him with).  The State claims that Walker invited
any error by proposing that Judge Steinkruger instruct on the lesser
offenses.  In support of this invited-error claim, the State cites
cases in which a defendant attempted to challenge on appeal the very
language or jury instruction that the defendant had proposed to the
court below.  However, the State cites no case in which the
constitutionality of an offense was considered waived or the error
invited when a jury convicted a defendant on a lesser-included
offense requested by the defendant. 
          Walker's motion to dismiss raised a broad challenge to the
State's power to regulate in-home possession of any amount of
marijuana absent proof of an intent to sell.  Given the breadth of
Walker's challenge, it is clear that Walker's claim applied to the
lesser offenses that he requested.  We conclude that Walker did not
waive his constitutional challenge by requesting a jury instruction
on the lesser offense of fifth-degree misconduct involving
controlled substances.
          Walker's privacy claim
          Walker was convicted under AS 11.71.050(a)(3)(E) for
possessing eight ounces or more of marijuana.  He contends that this
statute violates the right of privacy guaranteed by article I,
section 22 of the Alaska Constitution.  Specifically, Walker argues
that because of the way the Alaska Supreme Court construed the right
of privacy in Ravin v. State, [Fn. 5] the legislature has no
authority to prohibit people from possessing marijuana in their
home, no matter how large the amount, unless the State affirmatively
proves that the person intends to sell or otherwise distribute the
marijuana to others. 
          In Ravin, the supreme court held that, even though there
is no fundamental right to possess or ingest marijuana, [Fn. 6]
people nevertheless have a heightened expectation of privacy with
respect to their personal activities within their home.  This
heightened right of privacy includes the possession of marijuana for
purely personal use   unless the government demonstrates a
substantial contrary public interest: 
           
                    Privacy in the home is a fundamental right,
under both the federal and Alaska constitutions.  We do not mean ...
that a person may do anything at anytime as long as the activity
takes place within a person's home.  First, [this heightened right
of privacy applies only] to possession for purely private,
noncommercial use in the home.  And secondly, we think that this
right must yield when it interferes in a serious manner with the
health, safety, rights and privileges of others[,] or with the
public welfare.   . . .  
          
                         Thus, we conclude that citizens of the
State of Alaska have a basic right to privacy in their homes under
Alaska's constitution.  This right to privacy would encompass the
possession and ingestion of substances such as marijuana in a purely
personal, non-commercial context in the home unless the state ...
[demonstrates] that proscription of possession of marijuana in the
home is supportable by ... a legitimate state interest. [Fn. 7]  

                    After a lengthy discussion of the effects of marijuana,
the supreme court concluded that the State had demonstrated a
substantial interest in (a) regulating the use of marijuana by
drivers, (b) restricting marijuana to adults only, (c) regulating
the use or possession of marijuana in public places, and (d)
regulating the buying and selling of marijuana. [Fn. 8]  The supreme
court then endorsed the following additional restriction: 
                     
                    Possession at home of amounts of marijuana
          indicative of intent to sell rather than possession for personal use
is likewise unprotected [by article I, section 22]. [Fn. 9]  
                    
                    This sentence from the Ravin decision is the crux of
Walker's case.  Walker construes this sentence to mean that the
Alaska Constitution forbids the government from restricting or
regulating possession of marijuana in a private residence unless the
government affirmatively proves that the possessor intends to sell
or distribute the marijuana.  But the supreme court's wording
suggests otherwise.  
          Had the supreme court meant what Walker claims   that is,
had the court believed that the right of privacy insulates all
private possession of marijuana in the home unless the government
proves an intent to sell   the court could easily have said this. 
Instead, Ravin speaks of the legislature's valid interest in
regulating possession of  "amounts of marijuana indicative of intent
to sell[.]" [Fn. 10]  As just explained, when the supreme court
penned this sentence, the court had already declared that the
government has a valid interest in regulating the buying and selling
of marijuana.  If the government can validly regulate the sale of
marijuana, it necessarily follows that the government has a valid
interest in regulating the possession of marijuana for purposes of
sale.  But this interest would apply regardless of the amount of
marijuana at issue.  If a defendant's intent to sell is the factor
that justifies state regulation, it makes no difference (for right
of privacy purposes) whether a defendant intends to sell a half-
ounce or a half-pound.  In both instances, the defendant's intent
to sell justifies governmental regulation and intervention. 
          This being so, the supreme court must have been referring
to another concept when the court spoke of "amounts of marijuana
indicative of intent to sell."  We believe that the court chose this
wording because the court concluded that, even when no intent to
sell is proved, the legislature nevertheless has the power to set
reasonable limits on the amount of marijuana that people can possess
for personal use in their homes.
          The Alaska Legislature adopted and endorsed this same
interpretation when, in the wake of Ravin, the legislature rewrote
our State's marijuana possession laws.  As enacted by the
legislature in 1982, [Fn. 11] former AS 11.71.060(a)(4) prohibited
a person from possessing more than four ounces of marijuana (even
if the person had no intent to sell  or distribute the marijuana). 
In its accompanying commentary, the legislature declared: 
 
          [T]his legislation is intended to clarify the
law in Alaska concerning possession of marijuana, in light of the
decision of the Supreme Court of Alaska in Ravin v. State, 537 P.2d
494 (Alaska 1975).  Ravin held that Alaska's constitutional right
to privacy protects the possession and use of marijuana by an adult,
in the home, in amounts indicative of personal use in a purely
personal, non-commercial context.  The approach taken in this Act
is to define, for purposes of the decision in Ravin, an amount which
is indicative of personal use, and to provide a clear line of
demarcation of four ounces, so that citizens of this state will know
precisely what conduct is prohibited. [Fn. 12]

          The Ravin decision itself does not elaborate on what
amount of marijuana might constitute an "amount[] . . . indicative
of intent to sell."  That is, the court did not specify the dividing
line where, because of the amount of marijuana involved, the
legislature can reasonably regulate personal possession of marijuana
in the home, even in the absence of an intent to sell.  We need not
establish a precise dividing line either.  
          Walker was convicted of violating AS 11.71.050(a)(3)(E),
which forbids possession of eight ounces or more of marijuana.  To
resolve Walker's case, we need only hold   and we do hold   that
eight ounces or more of marijuana is an amount large enough to fall
within the Ravin court's category of "indicative of intent to sell." 
That is, eight ounces of marijuana is an amount large enough to
justify legislative regulation, even though the marijuana is
possessed in a residence for purely personal use.  Accordingly,
AS 11.71.050(a)(3)(E) does not offend the right of privacy
guaranteed by article I, section 22 of the Alaska Constitution. 
          The judgment of the superior court is AFFIRMED. 
COATS, Chief Judge, concurring.

          Walker contends that Ravin v. State [Fn. 1] prohibits the
legislature from criminalizing the possession of any amount of
marijuana in the home unless the government can prove an intent to
sell.  We do not read Ravin in this manner.   Ravin recognizes the
right of the government to regulate the possession and use of
marijuana, concluding that "possession of marijuana by adults at
home for personal use is constitutionally protected." [Fn. 2]  But,
in context, it seems clear that Ravin does not permit possession of
an unlimited amount of marijuana, but creates a limited exemption
for possession of small quantities of marijuana in the home.  In
Cleland v. State [Fn. 3] we stated:

          Although Alaska's residents enjoy a right of
privacy which extends to protect their right to possess small
quantities of marijuana for personal use in their home, the
constitutional right under the privacy laws does not protect the
right to use or possess marijuana as such.

          In 1982, the legislature passed legislation which
criminalized the possession of four or more ounces of marijuana.
[Fn. 4]   In that legislation, the legislature recognized and
deferred to the Ravin decision. [Fn. 5]   I believe that this
legislative action was not inconsistent with the Ravin decision and
was within the "state's police power for the public welfare." [Fn.
6]
          A 1990 initiative enacted current AS 11.71.060, which
criminalizes possession of less than one half pound of marijuana. 
The constitutionality of this statute is questionable because it
appears to conflict with Ravin, a decision of the Alaska Supreme
Court which we are bound to follow.  The case before us, however,
involves a conviction for possession of more than one half pound of
marijuana under AS 11.71.050(a)(3)(E).  We conclude that
criminalizing the possession of more than one half pound of
marijuana does not conflict with the Ravin decision.  


                            FOOTNOTES


Footnote 1:

     AS 11.71.040(a)(3)(G).


Footnote 2:

     537 P.2d 494 (Alaska 1975).


Footnote 3:

     AS 11.71.050(a)(3)(E).


Footnote 4:

     Walker also claims that the present version of sixth-degree
misconduct involving controlled substances is unconstitutional. 
That statute, AS 11.71.060, resulted from the 1990 citizens'
initiative.  That statute now (purports to) criminalize, "us[ing]
or display[ing] any amount of a schedule VIA controlled substance
or possess[ing] one or more preparations, compounds, mixtures, or
substances of an aggregate weight of less than one-half pound
containing a schedule VIA controlled substance."  The
constitutionality of this offense is questionable because of the
Ravin decision and because of the limitation on revising
constitutional provisions by voter initiative.  See Bess v. Ulmer,
985 P.2d 979, (16-17 of slip) (Alaska 1999) (Slip Opinion # 5167,
August 17, 1999).  But Walker was not convicted of this offense, so
it is not at issue in this case.


Footnote 5:

     537 P.2d 494 (Alaska 1975). 


Footnote 6:

     Id. at 502. 


Footnote 7:

     Ravin, 537 P.2d at 504.  


Footnote 8:

     Id. at 511.  


Footnote 9:

     Id.


Footnote 10:

     Id. (emphasis added).


Footnote 11:

     Ch. 45, sec. 2, SLA 1982. 


Footnote 12:

     Commentary & Sectional Analysis for the 1982 Revision of
Alaska's Controlled Substances Laws, Conference Committee Substitute
for Senate Bill No. 190 at 19. 


                    FOOTNOTES   (Concurrence)


Footnote 1:

       537 P.2d 494 (Alaska 1975).


Footnote 2:

       Id. at 511.


Footnote 3:

       759 P.2d 553, 557 (Alaska App. 1988).


Footnote 4:

       Former AS 11.71.060(a)(4).


Footnote 5:

       See Commentary & Sectional Analysis for the 1982 Revision of
Alaska's Controlled Substances Laws, Conference Committee Substitute
for Senate Bill No. 190.  1982 House Journal 1409.


Footnote 6:

       Ravin, 527 P.2d at 511.