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Avila v. State (3/30/01) ap-1730
Avila v. State (3/30/01) ap-1730
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SAL AVILA, )
) Court of Appeals No. A-7145
Appellant, ) Trial Court No. 3AN-97-10133 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1730 March 30, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Nancy R. Simel, 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.
MANNHEIMER, Judge.
In the summer of 1997, Sal Avila was an inmate at the
Palmer Correctional Center. The state troopers and the Wasilla
police ran a "sting" operation in an attempt to catch Avila
distributing heroin at the prison. To carry out this scheme, the
police enlisted another inmate, Dennis Cash, as a "false friend".
Cash owed Avila $150. Using a story worked out by the
police, Cash told Avila that he would pay off this debt in the
following way: Cash had a friend named "Rick" on the outside, and
Rick owed money to Cash. Cash would put Avila in contact with Rick,
and Rick would supply the money to make a $150 purchase of heroin.
Rick would deliver this heroin to Avila's girlfriend, Judy Cummins,
and then Cummins would bring the heroin to Avila at the Palmer
Correctional Center.
"Rick" was, in fact, a police officer. Avila made
telephone calls to both Rick and Cummins, trying to arrange the drug
transaction described in the previous paragraph, and Rick gave
Cummins $150 to purchase drugs. But Cummins ultimately decided that
she would not deliver drugs to a prison. Her decision ended the
sting operation before any delivery of heroin took place.
For his part in this episode, Avila was charged with two
crimes: attempted second-degree controlled substance misconduct
(i.e., attempted possession of heroin for purposes of delivery) and
solicitation of second-degree controlled substance misconduct (i.e.,
asking another person to engage in the delivery of heroin). [Fn.
1] Following a jury trial, Avila was convicted of both crimes.
Avila was a second felony offender for purposes of
presumptive sentencing. For the crime of attempted possession of
heroin with intent to deliver, he received a sentence of 10 years'
imprisonment with 5 years suspended (5 years to serve). For the
crime of soliciting a delivery of heroin, Avila received a sentence
of 6 years to serve. One year of the solicitation sentence was made
consecutive to the attempt sentence, so Avila's composite term is
11 years' imprisonment with 5 years suspended.
The evidence at trial was sufficient to support the jury's
finding that Avila intended to deliver at least a portion of the
heroin to Dennis Cash
The State charged Avila with attempted second-degree
controlled substance misconduct on the theory that Avila, after he
received the heroin from Judy Cummins, intended to deliver at least
a portion of the drug to Dennis Cash (and possibly other inmates).
One of Avila's theories of defense at trial was that, even
assuming that he tried to get Cummins to deliver heroin to him in
prison, this heroin was intended solely for Avila's personal use.
Under this view of the case, Avila would be guilty of attempted
fourth-degree controlled substance misconduct attempted possession
of heroin for personal use, rather than attempted possession of
heroin for purposes of delivery to others.
At Avila's request, the trial judge instructed the jury
on this lesser offense. In their summations to the jury, the two
trial attorneys argued contrasting interpretations of the evidence.
Avila's attorney argued that Avila wanted the heroin for his
personal use, while the prosecutor argued that Avila intended for
at least part of the heroin to be distributed to Cash. The jury
resolved this dispute in favor of the State; they rejected the
proposed lesser offense and found Avila guilty as charged i.e.,
guilty of attempted possession of heroin for purposes of delivery.
On appeal, Avila contends that the State failed to present
sufficient evidence to support this verdict. Avila argues that,
even when the evidence is viewed in the light most favorable to the
jury's decision, no reasonable person could have concluded that the
State had proved that Avila intended to deliver at least a portion
of the heroin to Cash.
We have independently reviewed the record, and we
acknowledge that the State's evidence on this issue was relatively
weak. Nevertheless, we can not say that it was so weak that no
reasonable person could have relied on it. We therefore conclude
that the evidence is sufficient to support the conclusion that Avila
intended to deliver some portion of the heroin to another person.
Avila argues in the alternative that, even supposing that
he intended to share the heroin with Cash, this would not constitute
a "delivery" for purposes of the drug laws.
Avila points out that, as far as he knew, Cash was the
person who effectively provided the money that was to be used to
purchase the heroin. As explained above, Cash owed Avila $150.
According to the story that the authorities concocted for Avila,
"Rick" owed money to Cash, and Rick was willing to partially
discharge his debt to Cash by giving Avila's girlfriend $150 so that
she could purchase heroin for Avila. Thus, Avila would receive $150
worth of heroin, and this would satisfy Cash's debt to him.
Based on this scenario (that is, based on the facts as
they appeared to Avila), Avila argues that even if he had intended
to give some of the heroin to Cash, this only would have amounted
to a sharing between two co-purchasers. Avila further contends that
such a sharing would not constitute a "delivery".
Avila's argument is seemingly at odds with our decision
in State v. Burden [Fn. 2]. Burden, we held that a go-between in
a drug transaction is chargeable with "delivery" even though the go-
between is the agent of the purchaser. [Fn. 3] Thus, if Avila had
not intended to take any of the heroin himself, but had intended
merely to act as a conduit for the delivery of heroin to Cash, Avila
would clearly be guilty of attempting to possess the heroin with
intent to deliver.
But Avila argues that his participation as a co-purchaser
makes his case different. Avila points out that if he had succeeded
in having Cummins deliver the heroin to him at the prison, then even
if Avila never was able to physically transfer a portion of that
heroin to Cash, Cash might still have been chargeable with
possession of heroin under a constructive possession theory (because
he was Avila's partner in the purchase). Avila argues that if, in
the eyes of the law, Cash would be deemed to have received the
heroin at the moment that Cummins delivered the drug to Avila, then
it makes no sense to say that a second "delivery" and a second act
of "possession" would have occurred when Avila later handed Cash's
portion of the heroin to him.
(continued on next page)
There is some case law that arguably supports Avila's
position. [Fn. 4] On the other hand, there are a number of cases
that either reject Avila's "co-purchaser" defense or else restrict
its scope to situations where the co-purchasers take possession
simultaneously or practically simultaneously. [Fn. 5]
Even though this court solicited supplemental briefing
from the parties on this issue, Avila has not cited, much less
discussed, any of the cases listed in the footnotes to our previous
paragraph. Given the fact that this is a difficult issue of first
impression in Alaska, we conclude that Avila has failed to
adequately brief the issue, and we therefore decline to resolve the
legal merit of Avila's proposed co-purchaser defense. [Fn. 6]
Finally, Avila argues that the State failed to prove a
necessary element of the attempt charge. Under AS 11.31.100(a), the
crime of attempt requires proof of "a substantial step toward the
commission of [the target] crime". Avila argues that his only
actions were telephone calls to "Rick" and to Cummins, and that, even
when viewed in the light most favorable to the State, these
telephone calls amounted to no more than solicitations to deliver
heroin to him.
But when Avila solicited Cummins to deliver heroin to him
in prison, Avila became responsible for any of Cummins's conduct
that might constitute a substantial step toward the accomplishment
of that crime. [Fn. 7] Thus, Avila could properly be convicted of
attempt if either he or Cummins thereafter performed a substantial
step toward the commission of the intended crime.
Our criminal code does not explicitly define the term
"substantial step". This lack of a definition was intentional. In
their commentary to the draft provision on attempt, the Criminal
Code Revision Subcommission declared that "specificity beyond this
point would be self-defeating". [Fn. 8] But the Subcommission
stated that it advocated the approach taken by the Model Penal Code:
to qualify as a "substantial step", the defendant's act must be
"strongly corroborative of the actor's criminal purpose". [Fn. 9]
The Subcommission also indicated its approval of the Model
Penal Code's list of acts "which should not be held insufficient as
a matter of law to constitute a substantial step". [Fn. 10] This
list of prima facie substantial steps includes conduct which, under
former law, might have been deemed merely "preparatory" for
example, "searching for or following the contemplated victim of the
crime", "reconnoitering the place contemplated for the commission
of the crime", and "possession, collection[,] or fabrication of
materials to be employed in the commission of the crime, at or near
the place contemplated for its commission, where such possession,
collection[,] or fabrication serves no lawful purpose of the actor
under the circumstances". [Fn. 11]
In Avila's case, Cummins engaged in conduct which can be
analogized to the examples listed in the Subcommission's commentary.
Cummins met with "Rick" and obtained the money that was to be used
to purchase the heroin. She then went searching for a heroin
supplier that she knew, intending to consummate the purchase. (The
purchase did not occur because Cummins was unable to find the
supplier while she still had all the money.)
Comparing Cummins's acts to the acts listed in the
Subcommission's commentary, it appears that a reasonable jury could
properly conclude that Cummins's conduct amounted to a "substantial
step" toward accomplishing a delivery of heroin to Avila. This
conclusion is bolstered by the Alaska Supreme Court's decision in
Braham v. State, where the court held that a fairly minimal act was
sufficient to constitute a "substantial step". [Fn. 12]
As already explained, once Avila solicited Cummins to
deliver heroin to him in prison, he became chargeable with the
actions she took toward the accomplishment of this crime. Thus, the
jury could properly find that Avila (through Cummins) committed a
substantial step toward the commission of Avila's intended crime
possession of heroin for purposes of delivery to a third person
(Cash).
For all these reasons, we hold that the evidence was
sufficient to support Avila's conviction for attempted possession
of heroin with intent to deliver.
Avila's two convictions (one for attempt, the other for
solicitation) must merge
On appeal, Avila argues that his two convictions must
merge. The State concedes that Avila is correct. AS 11.31.140(d)
authorizes the State to indict a defendant on separate counts of
solicitation and attempt when both of these theories of criminal
liability arguably apply to the defendant's conduct. However, AS
11.31.140(b) declares that a defendant may be convicted of only one
of these inchoate crimes when the charges are based on "conduct
designed to ... culminate in [the] commission of the same crime".
Based on this statute, the State agrees that, under the facts of
this case, Avila should not have received separate convictions for
attempt and solicitation.
We conclude that the State's concession of error is well-
founded. [Fn. 13] We therefore direct the superior court to vacate
the existing judgement against Avila and to enter a new judgement
that reflects a single conviction for attempted second-degree
controlled substance misconduct. We direct entry of judgement on
the charge of attempt because, under the facts of Avila's case and
the State's theory of prosecution, Avila's solicitation of Cummins
and "Rick" to deliver heroin to him appears to have been a portion
of the State's proof of the attempt charge, and thus effectively a
lesser included offense.
Avila's argument that the jury should have been instructed
on his proposed lesser-included offense of soliciting Cummins to
possess heroin
Because we are directing the superior court to vacate
Avila's conviction for soliciting delivery of heroin, this claim is
moot.
Avila's argument that his sentence is excessive
Avila argues that his composite sentence of 11 years'
imprisonment with 5 years suspended (6 years to serve) is excessive.
Because Avila received partially consecutive sentences, and because
we are directing the superior court to vacate one of Avila's
convictions, this argument is premature. The superior court
potentially may reduce Avila's sentence when it resentences Avila
on the remaining count.
We therefore do not decide Avila's sentence appeal at this
time. Instead, we direct the superior court to resentence Avila
within 90 days of the effective date of our decision. (For that
effective date, see Appellate Rules 507(b) and 512(a).) Within 30
days of the time Avila is resentenced, Avila shall notify this court
whether he wishes to renew his sentence appeal. If Avila wishes to
renew his sentence appeal, his case will proceed under the
procedures specified in Appellate Rule 215. If Avila does not wish
to renew his sentence appeal, this file will be closed.
Conclusion
We AFFIRM Avila's conviction for attempted second-degree
controlled substance misconduct. We VACATE Avila's conviction for
solicitation of second-degree controlled substance misconduct. We
REMAND Avila's case to the superior court for resentencing within
90 days of the effective date of this decision. And, within 30 days
of being resentenced, Avila shall tell us whether he wishes to renew
his sentence appeal.
FOOTNOTES
Footnote 1:
AS 11.71.020(a) (defining second-degree controlled substance
misconduct); AS 11.31.100(a) (defining "attempt"); AS 11.16.110(2)(A)
(imposing vicarious liability for solicitation of a crime).
Footnote 2:
948 P.2d 991 (Alaska App. 1997).
Footnote 3:
See id. at 994.
Footnote 4:
See United States v. Swiderski, 548 F.2d 445, 449-452 (2nd Cir.
1977); State v. Carithers, 490 N.W.2d 620, 622-24 (Minn. 1992);
People v. Edwards, 702 P.2d 555, 561 (Cal. 1985). See also United
States v. Elliott, 849 F.2d 886, 890 (4th Cir. 1988); United States
v. Palafox, 764 F.2d 558, 560-63 (9th Cir. 1985) (en banc); State
v. Borja-Guzman, 912 P.2d 277, 281-83 (N.M. App. 1996).
See also United States v. Hernandez, 591 F.2d 1019, 1022 (5th
Cir. 1979) (a single sale of a controlled substance will not support
separate punishments for distribution and possession with intent to
distribute); United States v. Smith, 757 F.2d 1161, 1165-66 (11th
Cir. 1985) (dealing with the related issue of whether two physical
deliveries occurring during the same drug transaction first the
delivery of a sample, and then, when the sample proved satisfactory
to the purchaser, the remainder will support separate counts);
United States v. Arbelaez, 812 F.2d 530, 532-33 (9th Cir. 1987)
(holding that a defendant who supplied a large amount of cocaine to
an accomplice, knowing the accomplice would travel to California and
sell the drug to various purchasers, could not be separately
punished for (1) aiding or abetting the accomplice's possession of
cocaine with intent to distribute and (2) aiding or abetting the
accomplice's later distribution of cocaine).
See also United States v. Wilson, 781 F.2d 1438, 1439-1440 (9th
Cir. 1986) (a defendant who attempted to manufacture PCP
(phencylidine) could only be punished for a single crime even
though, during the manufacturing process, he violated three separate
statutes by (1) possessing the chemical "piperidine", knowing it
could be used to manufacture PCP; (2) manufacturing PCC, a chemical
precursor of PCP and a necessary step in the process, and (3)
attempting to manufacture PCP); United States v. Forester, 836 F.2d
856, 859-861 (5th Cir. 1988) (a defendant who attempted to
manufacture methamphetamine could only be punished for a single
crime even though the defendant also violated another statute by
possessing P2P (phenyl-2-proponone) with intent to manufacture
methamphetamine).
Footnote 5:
See United States v. Speer, 30 F.3d 605, 609 (5th Cir. 1994);
United States v. Monzon, 869 F.2d 338, 347-48 (7th Cir. 1989);
United States v. Holmes, 722 F.2d 37, 41-42 (4th Cir. 1983); United
States v. Wright, 593 F.2d 105, 108 (9th Cir. 1979); Durham v.
United States, 743 A.2d 196, 201-04 (D.C. App. 1999); State v.
Moore, 529 N.W.2d 264, 266 (Iowa 1995); Long v. United States, 623
A.2d 1144, 1148-49 (D.C. App. 1993); Commonwealth v. Johnson, 602
N.E.2d 555, 559 (Mass. 1992); State v. Toppan, 425 A.2d 1336, 1340
(Me. 1981).
Footnote 6:
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New
York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235,
237 n.2 (Alaska 1978) (a party's failure to offer more than cursory
briefing of an issue will be deemed an abandonment of that issue).
Footnote 7:
See AS 11.16.110(2)(A).
Footnote 8:
Alaska Criminal Code Revision, Tentative Draft, Part 2
(February 1977), p. 73.
Footnote 9:
Id.
Footnote 10:
Id.
Footnote 11:
Id.
Footnote 12:
571 P.2d 631, 637-38 (Alaska 1977) (a hospital visit paid to
the intended victim of a homicide plot, during which the assassin
intended to gain the trust of the victim, was held to be a
sufficient "substantial step" to support a conviction for attempted
murder).
Footnote 13:
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring
an appellate court to independently assess any concession of error
by the State in a criminal case).
