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Pease v State (07/20/2001) ap-1755
Pease v State (07/20/2001) ap-1755
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:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CAROL Y. PEASE, )
) Court of Appeals No. A-7458
Appellant, ) Trial Court No. 4FA-98-1810 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1755 July 20, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, 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.
MANNHEIMER, Judge.
Carol Y. Pease was convicted of possessing 25 or more
marijuana plants, a violation of AS 11.71.040(a)(3)(G). Although
Pease had only 19 marijuana plants growing in her house, she also
had another 33 pots containing the dead remnants (stalk and root
ball) of previously harvested marijuana plants. Over Pease's
objection, the jury was instructed that these 33 remnants
constituted "marijuana plants" for purposes of assessing Pease's
guilt that "it does not matter whether the plant is alive or dead."
This was error. As used in AS 11.71.040(a)(3)(G), the term
"marijuana plants" refers solely to live plants. Because the jury
instructions allowed the jury to convict Pease based on her
possession of the 33 dead remnants, Pease's conviction must be
reversed.
The statutory history of AS 11.71.040(a)(3)(G)
Pease was charged with violating AS 11.71.040(a)(3)(G),
which makes it a felony to possess "25 or more plants of the genus
cannabis". This statute was enacted in 1994 for the purpose of
solving an administrative problem that the police faced under former
law.
Prior to 1994, there was only one statute that provided
a felony penalty for simple possession of marijuana. That statute
was (and is) AS 11.71.040(a)(3)(F), which forbids a person from
possessing "one or more preparations, compounds, mixtures, or
substances of an aggregate weight of one pound or more" of marijuana.
[Fn. 1]
But the term "marijuana" does not include the whole plant.
Rather, as defined in AS 11.71.900(14), "marijuana" means only
the seeds, and leaves, buds, and flowers of the
plant (genus) Cannabis, whether growing or not; it does not
include the resin or oil extracted from any part of the plants, [and] it
does not include the stalks of the plant[.]
Moreover, a companion statute, AS 11.71.080, declares that
[f]or purposes of calculating the aggregate
weight of a live marijuana plant, the aggregate weight shall
be the weight of the marijuana when reduced to its commonly used form.
Because of these statutes, the police faced a problem
when they raided a marijuana farm and found only growing, unharvested
plants. To determine whether the grower possessed one pound or more
of marijuana, the police could not simply cut down the plants and
weigh them. In practice, the police had to finish the job that the
grower had begun that is, they had to cut down the plants, allow
them to dry, and then cut the leaves, buds, and flowers from the
stalks if they were to prosecute the grower under
AS 11.71.040(a)(3)(F).
The police asked the legislature to amend the law so that
they could avoid this time-consuming process. [Fn. 2] The commander
of the Ketchikan Police Department told the Senate Judiciary
Committee of an instance in which the police discovered a 200-plant
marijuana operation; according to the Ketchikan commander, it took
the police team some 32 officer-hours to process the plants. This,
he said, was "a real waste of resources". [Fn. 3]
To solve this problem, the police and the Department of
Law proposed two changes to the statutes dealing with marijuana.
First, AS 11.71.080 would be amended to specify that, for purposes
of calculating the weight of a live marijuana plant, the aggregate
weight would no longer be "the weight of the marijuana when reduced
to its commonly used form", but rather the weight "of the entire
marijuana plant, excluding the root wad and any growing attachments,
at the time of harvest or seizure." [Fn. 4] Second, the definition
of "marijuana", AS 11.71.900(14), would be expanded to include the
stalks of the plant. [Fn. 5]
Assistant Attorney General Margot Knuth explained that,
under these proposed changes, marijuana plants would still have to
be harvested and dried, but the police would no longer have to
separate out the stalks. [Fn. 6] She also pointed out that under
the proposed changes, by including the stalk in the measurement, the
felony weight of one pound would be reached sooner. [Fn. 7]
Senator Dave Donley agreed that "the [current] process was
ridiculous" and "a waste of resources", but he expressed concern that,
by amending the law in this way, the legislature might be
inappropriately imposing felony penalties on a large number of
people whose offense, under current law, would only be a
misdemeanor. [Fn. 8] He suggested that it might be better to outlaw
possession of a specified large number of marijuana plants. [Fn.
9] Committee Chair Robin Taylor then asked Ms. Knuth to work with
the committee staff to draft a revised proposal along these lines.
[Fn. 10]
The result was Judiciary Committee Substitute for Senate
Bill 332, "An Act relating to the possession of 25 or more marijuana
plants". This reworked bill made no change to the statutory
definition of marijuana or to the statute defining the aggregate
weight of live marijuana plants. Instead, the bill added a new
subsection to AS 11.71.040 subsection (a)(3)(G) that prohibited
possession of "25 or more plants of the genus cannabis". [Fn. 11]
When the House Judiciary Committee took up consideration
of the reworked bill, Joe Ambrose (chief of staff for Senator Robin
Taylor) told the committee that CSSB 332 provided the police with
a theory of prosecution that was an alternative to measuring the
aggregate weight of live marijuana plants as prescribed in AS
11.71.080. [Fn. 12] Assistant Attorney General Margot Knuth, who
was there to support the bill that she had helped draft, explained
that CSSB 332 was designed "to take our law enforcement officers out
of the business of drying marijuana". [Fn. 13] In other words,
officers could simply seize and count the growing plants rather than
harvesting and processing those plants, then weighing the resulting
leaves, buds, and flowers as required by existing law.
Ms. Knuth explained that the Senate drafters had tried to
write a provision that more or less paralleled the "one pound or
more" prohibition contained in subsection (a)(3)(F). She told the
House committee that the drafters picked the figure of 25 plants
because "25 plants [of] moderate growth will weigh ... over a pound".
[Fn. 14]
Committee Chair Brian Porter asked Ms. Knuth how the
proposed law would apply in a situation where the police found
immature plants. Ms. Knuth replied that the bill, as drafted, did
not require the plants to be at any particular stage of maturity.
She added that she believed it was fair to include all marijuana
plants, no matter at what stage of growth, because "every baby
marijuana plant has the potential of becoming a nice, productive,
healthy plant." [Fn. 15] Representative Porter seconded Ms. Knuth's
remark. He declared that the bill should include even "a little tiny
plant" because "from little tiny plants, great big plants grow; and
somebody should not get off just because you bust them too quick."
[Fn. 16]
The House ultimately approved CSSB 332, and it was signed
into law as SLA 1994, ch. 53, sec. 1.
Why we interpret subsection (a)(3)(G) to require proof of
25 living plants
As explained above, the jury in Pease's case was
instructed that the 33 remnant marijuana plants in her possession
remnants that consisted only of dead stalks and root wads were
nevertheless "plants of the genus cannabis" for purposes of
AS 11.71.040(a)(3)(G). That is, the jurors were told that "it [did]
not matter whether the plant[s] [were] alive or dead."
The State contends that, in everyday usage, the word
"plant" includes both living and dead plants, and thus the jury
instructions accurately conveyed the "plain meaning" of the statute.
This contention appears dubious. When someone asks a gardener how
many tomato plants they have in their garden, the person posing this
question is normally not seeking information about the number of
stumps of dead plants remaining from previous years. Likewise, when
a person asks their spouse whether they think a rosebush would look
good in their yard, one would not expect the couple to be
contemplating the effect that a dead rosebush would have on their
landscaping.
From these examples, it is clear that the word "plant"
or, more specifically, the phrase "plants of the genus cannabis"
must be interpreted in context. In this case, the relevant context
is the legislative history of AS 11.71.040(a)(3)(G). From our
review of that legislative history, we conclude that the legislature
was thinking of live plants, not dead ones.
As explained in the previous section of this opinion, the
impetus for subsection (a)(3)(G) was the difficulty that the police
faced when they seized growing plants from a marijuana cultivation
operation. Under prior law, the officers had to spend dozens of
hours harvesting the plants, drying them, then stripping the leaves,
buds, and flowers from the stalks (to reduce the marijuana to its
"commonly used form"). The aim of subsection (a)(3)(G) was to give
the police an alternative method of charging the marijuana grower,
a method that would "take ... law enforcement officers out of the
business of drying marijuana". [Fn. 17]
The problem, as it was described to the legislature, was
to find a way to eliminate the task the police faced when they
seized dozens (or hundreds) of live marijuana plants from a
marijuana-growing operation. Further, the description of the
proposed solution (changing the law so that police officers would
no longer have to dry the seized marijuana) also seems to focus on
the problem of live plants for, as a general matter, only live
plants need to be harvested and dried. Moreover, two other salient
portions of the committee discussion bolster the conclusion that the
legislature was thinking of living plants.
First, when Assistant Attorney General Knuth was asked why
the drafters of CSSB 332 picked "25" as the number of marijuana
plants that would trigger felony penalties, she explained that the
Senate drafters had tried to write a provision that more or less
paralleled the "one pound or more" prohibition contained in the
existing law, subsection (a)(3)(F). According to Ms. Knuth, the
consensus was that 25 plants of moderate growth would yield over a
pound of marijuana. [Fn. 18]
Ms. Knuth's explanation is clearly inconsistent with the
State's present argument that stumps of stalks and root wads should
be counted as "marijuana plants". The stalks and roots of the
cannabis plant do not qualify as "marijuana" under AS 11.71.900(14).
Thus, Ms. Knuth could not have been speaking of such remnant plants
when she told the House Judiciary Committee that CSSB 332, the
proposed law outlawing the possession of 25 cannabis plants, would
be roughly equivalent to the current law that outlawed possession
of one pound or more of marijuana. Ms. Knuth's explanation makes
sense only if she and the other drafters of the bill were thinking
of whole plants.
Second, when Representative Porter asked Ms. Knuth whether
the proposed law would apply if the police seized 25 immature
plants, Ms. Knuth said yes, it would and she declared that this
result was fair because "every baby marijuana plant has the potential
of becoming a nice, productive, healthy plant." [Fn. 19]
Representative Porter quickly added his assent to this view,
declaring that "from little tiny plants, great big plants grow; and
somebody should not get off just because you bust them too quick."
[Fn. 20]
Again, these comments are inconsistent with the State's
argument that dead remnant plants qualify as "plants of the genus
cannabis" for purposes of subsection (a)(3)(G). Both Ms. Knuth and
Representative Porter were obviously talking about living plants.
More importantly, the rationale they offered for endorsing CSSB 332,
despite the bill's failure to specify any particular stage of plant
maturity, makes sense only in the context of living plants.
For these reasons, we conclude that AS 11.71.040(a)(3)(G)
requires proof that the defendant possessed 25 or more living
marijuana plants.
This is not to say that the crime can be proved only if
the police find 25 or more live marijuana plants when they search
the premises. In a prosecution under AS 11.71.040(a)(3)(G), the
State must establish that the defendant simultaneously possessed 25
or more living marijuana plants. Obviously, a defendant's
possession of dead remnant plants is circumstantial evidence that,
earlier, the defendant possessed these plants when they were alive.
Thus, a jury might reasonably find a defendant guilty if, for
example, the police discover 20 large growing plants and another ten
that were apparently just harvested.
But the jury must be convinced beyond a reasonable doubt
that, at some point in time, the defendant simultaneously possessed
at least 25 live marijuana plants. The verdict in Pease's case is
flawed because the jury was incorrectly told that the 33 dead
remnant plants counted toward the requisite 25, without regard to
when those 33 remnants were last alive or whether Pease ever
possessed them when they were alive.
It is conceivable that, had the jury been told to view the
dead remnants as circumstantial evidence of Pease's earlier
possession of live plants, the jury might have found that Pease
simultaneously possessed 25 or more live plants. But the evidence
was far from conclusive on this point. The State presented no
evidence regarding how long the 33 remnants had been dead, or if
there was ever a time when all 33 of them were simultaneously alive.
Thus, it is possible that the 33 remnants represented two or more
prior harvests, and that Pease never possessed more than 15 to 20
live marijuana plants at any one time.
More important, the jurors never considered these factual
issues because, under the instructions given to them, these issues
were irrelevant. The jury was told that the law made no distinction
between live marijuana plants and dead marijuana plants.
Accordingly, we must reverse Pease's conviction.
Conclusion
We conclude that the legislature intended AS
11.71.040(a)(3)(G) to require proof that the defendant
simultaneously possessed 25 or more live plants of the genus
cannabis. Pease's jury was incorrectly told that both living and
dead marijuana plants count equally toward the necessary 25.
Because the jury was misinstructed on this essential element of the
crime, the judgement of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
To be precise, the statute forbids possession of substances
weighing one pound or more "containing a schedule VIA controlled
substance". However, marijuana is the only controlled substance
listed in schedule VIA. See AS 11.71.190(b).
Footnote 2:
See Minutes of the House Judiciary Committee, April 20, 1994,
testimony of Joe Ambrose, chief of staff to Senator Robin Taylor
(Tape 94-62, Side A, number 825).
NOTE: These committee minutes, as well as the other committee
minutes and draft bills that we refer to in the footnotes of this
opinion, are all available through the Alaska Legislature's "BASIS"
(Bill Action and Status Inquiry System) web site for the 18th
legislature: www.legis.state.ak.us/basis18.htm
Footnote 3:
Minutes of the Senate Judiciary Committee, March 11, 1994,
testimony of Lt. Charles Mallott (Tape 94-15, Side A, number 103).
Footnote 4:
SB 332, 18 Legis., 2nd session (1994), lines 8-9.
Footnote 5:
Id., lines 16-17.
Footnote 6:
See Minutes of the Senate Judiciary Committee, March 11, 1994,
testimony of Margot Knuth (Tape 94-15, Side A, number 252).
Footnote 7:
See id.
Footnote 8:
See Minutes of the Senate Judiciary Committee, March 11, 1994,
remarks of Senator Donley (Tape 94-15, Side A, number 452).
Footnote 9:
See id. at 550.
Footnote 10:
See Minutes of the Senate Judiciary Committee, March 11, 1994,
remarks of Senator Taylor (Tape 94-15, Side A, number 550).
Footnote 11:
See CSSB 332 (Judiciary), 18th Legis., 2nd session (1994), line
14.
Footnote 12:
See Minutes of the House Judiciary Committee, April 20, 1994,
testimony of Joe Ambrose (Tape 94-62, Side A, number 825).
Footnote 13:
See Minutes of the House Judiciary Committee, April 20, 1994,
testimony of Margot Knuth (Tape 94-62, Side A, number 825).
Footnote 14:
See id. at 855.
Footnote 15:
See id. at 825.
Footnote 16:
See Minutes of House Judiciary Committee, April 20, 1994,
statement of Chairman Brian Porter (Tape 94-62, Side A, number 850).
Footnote 17:
Testimony of Margot Knuth, supra footnote 13.
Footnote 18:
Testimony of Margot Knuth, supra footnote 14.
Footnote 19:
Testimony of Margot Knuth, supra footnote 15.
Footnote 20:
Statement of Representative Porter, supra footnote 16.
