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Maness v. State (7/12/2002) ap-1809
Maness v. State (7/12/2002) ap-1809
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
BRET F. MANESS, )
) Court of Appeals No.
A-7292
Appellant, )
Trial Court No. 3AN-S97-9480 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1809 - July 12, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: Donna J. McCready, Ashburn and
Mason, P.C., Anchorage, for Appellant.
Kenneth M. Rosenstein, 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.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
In November 1997, Bret F. Maness killed Delbert White
during a confrontation in front of Manesss apartment. While the
reasons for the confrontation are disputed, it is clear that on
November 21, 1997, White went to Manesss apartment with a two-by-
four to confront Maness. Maness lived in a ground-level
apartment with his wife, Tina Maness. A friend, Paul Hackett,
lived in the apartment below the Manesses. Maness was in his
apartment with Hackett when White arrived at his door. In the
subsequent confrontation, which started in Manesss residence and
ended in the driveway, Maness shot White. When police and
paramedics arrived at the scene, White was lying in a pool of
blood. The paramedics took White to a hospital, and the police
took Maness and Hackett into custody. The police entered both
Manesss and Hacketts apartments to look for other possible
victims or suspects. When the police entered Manesss apartment,
they saw weapons and marijuana plants. The police applied for a
search warrant based on their observations and seized evidence.
The incident resulted in Maness being charged with
murder in the first degree1 for killing White, second degree
misconduct involving weapons2 (possession of a firearm during the
commission of a felony drug offense), and four counts of
misconduct involving a controlled substance in the fourth degree3
for:
a) maintaining a structure used for keeping or distributing
controlled substances,4
b) possessing one pound or more of marijuana,5
c) possessing with intent to deliver one ounce or more of
marijuana,6 and
a) d) possessing twenty-five or more marijuana plants.7
Maness defended the murder charge by contending that he
acted in self-defense. The jury acquitted Maness of the murder
charge and all lesser offenses that arose out of the death of
White. But the jury convicted Maness of possession of a firearm
during the commission of a felony drug offense and two counts of
misconduct involving a controlled substance in the fourth degree:
one for maintaining a structure used for keeping or distributing
a controlled substance and a second for possession of one pound
or more of marijuana. The jury acquitted Maness of the other drug
charges.
Judge Souter sentenced Maness to a composite sentence
of eight years with three suspended: six years with two years
suspended for possessing a firearm during the commission of a
felony drug offense and two years with one year suspended on each
conviction of misconduct involving a controlled substance in the
fourth degree (to run consecutively to the weapons possession
sentence). Maness appeals his convictions, raising several
arguments. We reverse Manesss conviction for possession of a
firearm during a felony drug offense. We otherwise affirm his
convictions.
Manesss motion to suppress evidence that the
police obtained from entering his residence
Following his indictment, Maness filed a motion to
suppress the evidence the police obtained when they entered his
residence. The state contended that the search was justified by
the protective sweep exception to the warrant requirement that
the police needed to enter Manesss residence because they had
reasonable cause to believe that their safety was in danger from
additional suspects who posed a threat to officers at the scene.
The state also claimed that the search was justified by the
emergency aid exception to the warrant requirement that the
police needed to search Manesss residence to make sure other
people had not been injured. Following an evidentiary hearing,
Judge Souter accepted the states contention that the search was
justified because the police had reasonable cause to believe that
their safety was in danger, and thus was permissible under the
protective sweep exception. Therefore he denied Manesss motion
to suppress. Judge Souter, however, rejected the states
contention that the search was justified under the emergency aid
exception. Maness appeals Judge Souters denial of his motion to
suppress.
In Alaska, to prove a search falls within the
protective sweep exception to the warrant requirement, the state
must prove that:
1) before engaging in the search, the
officers had reasonable cause to believe
that their safety was in danger because
additional suspects beyond those under
police control were present and posed a
threat to the officers and
the search was narrowly limited to
areas where the officers could find
dangerous persons.8
Judge Souter found credible the police testimony that
their safety was in danger and their search was narrowly limited.
At that hearing, Anchorage Police Officer Richard Jensen
testified that he received a message from the dispatcher that a
shot had been fired and that an individual was injured at 3804
Lois Drive. As he approached the scene, a uniformed security
guard, Edward Spencer, pointed to the scene and said that a crazy
man was down the street with a shotgun. Jensen proceeded to the
scene and saw Maness with a rifle. Officer Jensen pointed his
handgun at Maness and ordered him to drop the gun, which Maness
did. Jensen and other officers saw White lying face down on the
driveway in a large pool of blood. The police took Maness and
Hackett into custody, and paramedics arrived to treat White.
According to Lt. William Gifford, the police also had been told
that earlier someone in Manesss residence had been shooting
towards another residence with a pellet gun or a .22 and that
White had come over to Manesss residence because of this earlier
shooting incident. Lt. Gifford made the decision to enter the
two apartments at 3804 Lois Drive because he was concerned that
other armed suspects might be in the apartments or that there
might be additional victims.
Judge Souter concluded that this information justified
the police entering Manesss and Hacketts apartments, which were
adjacent to the driveway. He found the police had information of
an earlier shooting incident and a report of a crazy man with a
shotgun. This information gave the police reasonable cause to
believe that their safety was in danger because additional
suspects might be within the apartments. He also found that the
officers had narrowly limited their search to a reasonable area.
And he found it was reasonable for the police to have entered the
residences thirty minutes after they had arrived at the scene
because the officers had several different things that required
their attention before they could search a victim who was dying,
a crowd forming, and other officers arriving at the scene. Judge
Souter concluded the thirty-minute wait did not undermine the
contention that the search was necessary for officer safety.
We conclude that Judge Souter did not err in denying
Manesss motion to suppress. His findings support the conclusion
that the police had reasonable grounds to conduct a protective
sweep of Manesss residence.
The instruction on misconduct involving
weapons in the second degree
The jury convicted Maness of misconduct involving
weapons in the second degree. Alaska Statute 11.61.195(a)(1)
prohibits the possession of a firearm during the commission of a
felony drug offense:
(a) A person commits the crime of misconduct
involving weapons in the second degree if the
person knowingly
(1) possesses a firearm during the
commission of an offense under AS 11.71.010-
11.71.040 [misconduct involving a controlled
substance in the first, second, third, and
fourth degrees].
This case is controlled by Collins v. State.9 In
Collins, we concluded that in enacting AS 11.61.195(a)(1), the
legislature did not intend to criminalize every situation where a
person simultaneously commits a felony drug offense and possesses
or exercises control over a firearm.10 We concluded that AS
11.61.195(a)(1) requires proof of a nexus between a defendants
possession of the firearm and the defendants commission of the
felony drug offense.11 Manesss trial occurred before our
decision in Collins. At trial, Maness contended that the court
was required to instruct the jury that a nexus must exist between
the felony drug offense and the firearm possession to support a
conviction. Judge Souter denied Manesss request. During
closing arguments, the state argued to the jury that Maness could
be convicted if he possessed firearms in his residence while he
grew marijuana there, even if the firearms bore no connection to
the drug offense.
On appeal, Maness points out that Judge Souters jury
instruction conflicts with our decision in Collins. The state
argues that we should overrule Collins, but we decline to revisit
our decision. We note that this court has continued to follow
Collins in both Lewis v. State12 and Murray v. State.13
The state also argues that the evidence presented at
trial established a nexus between Manesss possession of a firearm
and his drug offense of maintaining a dwelling for the purpose of
keeping a controlled substance. The problem with the states
argument is that it merely establishes that a properly instructed
jury could have returned a verdict favorable to the state on this
count. But Judge Souters instruction did not allow the jury to
consider the nexus element of the offense. To affirm Manesss
conviction, we would have to find that the error in failing to
instruct the jury on the nexus element was harmless beyond a
reasonable doubt.14 We cannot do so. On the record before us, a
jury reasonably could have found no connection between Manesss
possession of marijuana and his possession of the firearms.
Accordingly, we reverse Manesss conviction of second-degree
misconduct involving a weapon.
The instruction on maintaining a structure
used for keeping controlled substance
Maness argues that Judge Souter plainly erred in how he
instructed the jury on the charge of maintaining a structure used
for keeping controlled substances.
Alaska Statute 11.71.040(a)(5) states:
(a) Except as authorized in AS 17.30, a
person commits the crime of misconduct
involving a controlled substance in the
fourth degree if the person
. . . .
(5) 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 this
chapter or AS 17.30[.]
Judge Souter instructed the jury that Maness could be
convicted of violating AS 11.71.040(a)(5) if the jury found the
state proved:
First, the event in question occurred at
or near Anchorage and on or about November
21, 1997; and
Second, that . . . Maness knowingly used
or allowed another to use the . . . dwelling
. . . for keeping or distributing controlled
substances in violation of a felony offense
as charged in Count V, VI or VII of the
indictment; and
Third, that [Maness] knew said . . .
dwelling . . . was used for keeping or
distributing controlled substances.
Maness did not object to the jury instruction.
On appeal, Maness argues the state had to prove as an
element of AS 11.71.040(a)(5) that a substantial purpose of the
dwelling was for keeping or distributing controlled substances,
the activity prohibited under the statute was ongoing or
continuous (not a single, isolated instance), and the possession
of the controlled substance was not merely for personal use.
This court summarized the required elements of AS
11.71.040(a)(5) in Dawson v. State:15
[T]o establish a violation of AS
11.71.040(a)(5), the state must prove that
the accused, while knowingly controlling or
knowingly having authority to control
property of the type listed in the statute,
personally used the property or knowingly
permitted another person to use it for the
purpose of keeping or distributing prohibited
controlled substances in a manner that
amounts to a felony under Alaska law. The
state need not prove that the property was
used for the exclusive purpose of keeping or
distributing controlled substances, but such
use must be a substantial purpose of the
users of the property, and the use must be
continuous to some degree; incidental use of
the property for keeping or distributing
drugs or a single, isolated occurrence of
drug-related activity will not suffice. The
purpose with which a person uses property and
whether such use is continuous are issues of
fact to be decided on the totality of the
evidence in each case; the state is not
required to prove more than a single specific
incident involving the keeping or
distribution of drugs if other evidence of
continuity exists.16
It is uncontested that Maness was growing a substantial
amount of marijuana. When the state stripped and dried the
plants, they yielded approximately 3.7 pounds of marijuana. The
evidence presented at trial established that Maness used a
substantial amount of his living space to grow marijuana.
Because Maness had a marijuana growing operation, it seems
apparent that the presence of the marijuana in his residence was
not a single, isolated occurrence of drug-related activity but
was a continuous growing operation.
Maness points out that the jury rejected the count
charging Maness with possessing marijuana for purposes of
distribution. He argues that he should not be convicted of
maintaining a structure used for keeping a controlled substance
when the jury did not find that his possession was for anything
other than personal use. But, AS 11.71.040(a)(5) prohibits
knowingly keeping or maintaining a dwelling that is used for
keeping or distributing controlled substances in violation of a
felony offense. The plain language of the statute appears to
criminalize behavior beyond maintaining the structure for
distributing controlled substances.
We are to find plain error only when we conclude that
the error was so obvious that any competent attorney would have
been aware of the issue and objected and that the defendant was
obviously prejudiced by the failure to raise the issue.17 We
decline to find plain error.
In a related argument, Maness contends that the
evidence the state presented at trial was insufficient to support
his conviction under AS 11.71.040(a)(5) because he possessed the
marijuana for his personal use. But, as we pointed out above,
the statute does not restrict the crime only to instances where
someone maintains a structure for purposes of distributing a
controlled substance.
The jury instruction on misconduct involving
a controlled substance in the fourth degree
for possession of a pound or more of
marijuana
The state charged Maness with violating AS
11.71.040(a)(3)(F), which prohibits possession of one or more
preparations, compounds, mixtures, or substances of an aggregate
weight of one pound or more containing a schedule VIA controlled
substance. The jury found Maness guilty of this charge. Maness
objects to the instruction Judge Souter gave to the jury. He
points to testimony that only a small portion of the marijuana
plant, the bud, was commonly used as marijuana. He contends that
under Judge Souters instruction, the jury could have considered
more than the weight of the marijuana bud in calculating the
weight of a live marijuana plant under AS 11.71.040(a)(3)(F),
which was error.
This issue requires analysis of three statutory
sections: AS 1.71.040 (a)(3)(F), AS 11.71.080, and AS
11.71.900(14). The first, AS 11.71.040(a)(3)(F), criminalizes
the possession of a pound or more of marijuana. The second, AS
11.71.080, states, For 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. And, the third, AS 11.71.900(14), defines marijuana as the
seeds, and leaves, buds, and flowers of the plant but not the
resin or oil from the plant, the stalks, or sterilized seeds.
Judge Souter instructed the jury:
Marijuana means the seeds, leaves, buds
and flowers, but not the stalks or roots of
the marijuana plant . . . whether growing or
not.
For 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.
Further, he instructed the jury that to convict Maness under AS
11.71.040(a)(3)(F), it had to find that he knowingly possess[ed]
an aggregate weight of one pound or more of . . . [a] compound[]
. . . containing . . . marijuana.
Maness contends that Judge Souter erred in giving this
instruction. He argues that the testimony at trial established
that only the bud of a growing marijuana plant would normally be
used as marijuana. Therefore, the evidence at trial established
that marijuana, when reduced to its commonly used form, is only
the bud. He argues that Judge Souter erred in allowing the jury
to consider the weight of other parts of the marijuana plant,
such as the leaves, when considering whether he knowingly
possess[ed] an aggregate weight of one pound or more of . . . [a]
compound[] . . . containing . . . marijuana.
We conclude that Judge Souter did not err in giving the
instruction. In Gibson v. State,18 we held that in determining
the weight of processed marijuana, all that was necessary to
convict under the statute was that the substance delivered
contains marijuana, and that the aggregate weight of the
substance meets the statutory requirement.19 We also held in
Gibson, that the commonly used form language from AS 11.71.080
refers to the method of calculating the aggregate weight of live
marijuana plants.20
In Atkinson v. State,21 we discussed the law that
applies when the jury must decide the aggregate weight of live
marijuana plants. We pointed out that in determining the weight
of marijuana plants, the marijuana did not have to be reduced to
its purest, unadulterated statutory form; aggregate weight must
instead be based on the commonly used form.22 In Atkinson, we
concluded that the court did not err in admitting an experts
testimony considering the aggregate weight of marijuana, even
though the marijuana included stems and twigs that were not part
of the statutory definition of marijuana.23 We concluded that
the weight of the marijuana was a factual question for the
jury.24
More recently, in Pease v. State,25 we again discussed
what could be included in calculating the aggregate weight of
live marijuana 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).26
Here, the state presented evidence that although the
bud of the plant is the most marketable and desirable form of
marijuana, the leaves of the plant have value and are used by
marijuana users. Furthermore, the statutory definition of
marijuana includes the seeds, and leaves, buds, and flowers of
the marijuana plant.27 Our prior case law is also consistent
with including marijuana leaves in determining the weight of live
marijuana plants. We conclude that Judge Souter did not err in
giving an instruction that allowed the jury to consider the
marijuana leaves as commonly used marijuana in determining the
aggregate weight of the marijuana.
Sufficiency of the evidence for the charge of
possessing a pound or more of marijuana
Maness next contends that the state did not present
sufficient evidence for the jury to convict him of possessing one
or more pounds of marijuana. Maness renews his argument that the
jury only should have considered the bud from the live marijuana
plants in determining its aggregate weight. We reject that
contention above. Maness also contends that some of the
marijuana weight was due to non-consumable marijuana and non-
marijuana objects (dimes, a nail, stalks, stems, roaches, and
charred material).
The state presented evidence that the marijuana seized
from Manesss apartment weighed approximately 4.18 pounds. The
marijuana that was packaged with unuseable materials weighed 7.66
ounces. Therefore, excluding the packages that contained foreign
objects and non-usable marijuana, the state presented evidence
that Maness possessed 3.7 pounds of usable marijuana (excluding
seeds, stems, stalks, and other non-usable portions of
marijuana).
The state presented sufficient evidence for a
reasonable juror to conclude beyond a reasonable doubt that
Maness possessed one or more preparations, compounds, mixtures,
or substances of an aggregate weight of one pound or more
containing marijuana and that the marijuana that came from live
plants had been reduced to its commonly used form.28
Presentence report and sentencing issues
Maness raises several issues concerning contested items
that were included in the presentence report and sentencing
issues. Because we are reversing Manesss conviction for
misconduct involving weapons in the second degree and remanding
the case, we find it unnecessary to address these issues.
Conclusion
Manesss conviction for misconduct involving weapons in
the second degree is REVERSED. His two convictions for
misconduct involving a controlled substance in the fourth degree
are AFFIRMED.
MANNHEIMER, Judge, concurring.
I am writing separately to address two legal problems
in this case: (1) the definition of the commonly used formof
marijuana (the phrase used in AS 11.71.080 to define the
punishable weight of live marijuana plants), and (2) whether a
person who is convicted of possessing a pound or more of
marijuana in their residence can also be convicted of the
separate felony of maintaining a building for the keeping of
controlled substances, AS 11.71.040(a)(5).
What is the commonly used form of marijuana?
For purposes of criminal prosecution under AS
11.71, the legislature has defined marijuana as the
[fertile] seeds, ... leaves, buds, and flowers of the
plant (genus) Cannabis, whether growing or not.1 The
police seized many marijuana plants (as well as some
harvested marijuana) from Manesss residence. Adhering
to the statutory definition of marijuana, the police
harvested and dried the leaves and buds from Manesss
marijuana plants. After the leaves and buds were dry,
they weighed 1674 grams approximately 3 pounds, 11
ounces. Adding in the previously harvested marijuana,
the State alleged that Maness possessed nearly 4 pounds
of marijuana.
When a person is prosecuted for possession of
marijuana, the seriousness of their offense depends on
the weight of the marijuana. But for purposes of
Alaskas drug statutes, the process of weighing
marijuana does not involve a straightforward process of
placing the seeds, leaves, buds, and flowers on a scale
and seeing how much they weigh. Instead, the
legislature has enacted special rules for determining
the punishable weight of marijuana.
When the marijuana is in harvested form, the
punishable weight includes not only the seeds, leaves,
buds, and flowers themselves but also the weight of
whatever else these plant parts might be mixed with.
Under AS 11.71.040(a)(3)(F), a person commits the class
C felony of fourth-degree controlled substance
misconduct if they possess one or more preparations,
compounds, mixtures, or substances of an aggregate
weight of one pound or more containing [marijuana]. As
this court noted in Gibson v. State, 719 P.2d 687
(Alaska App. 1986), this statute is worded so that the
amount of actual marijuana in a compound or mixture is
irrelevant. So long as the compound or mixture
contains some small amount of marijuana, the persons
offense will be gauged by the total weight of the
compound or mixture.2 Thus, a person who possesses two
or three joints of marijuana is guilty of a class B
misdemeanor3, but if they mix this small amount of
marijuana into a milkshake or a pan of brownies, they
are guilty of a class C felony4.
For unharvested marijuana that is, for live
plants the legislature has provided a different method
for determining the punishable weight of the marijuana.
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. In
Atkinson v. State, 869 P.2d 486, 494 (Alaska App.
1994), this court ruled that any dispute as to what
constitutes the commonly used form of marijuana is a
question of fact to be resolved by the jury.
Here lies the point of contention. At his
trial, Maness presented testimony that at least in the
current marijuana milieu the buds are the only
commonly used part of the marijuana plant; the leaves
are considered trash and are thrown away.5 Based on
this testimony, and based on the fact that almost all
of Manesss marijuana was in the form of live plants,
Maness asked the superior court to instruct the jury
(1) that they should disregard the weight of the leaves
harvested from his plants, and (2) that they could
convict Maness of felony possession of marijuana only
if the State proved that the buds from those plants
weighed at least one pound.
The trial judge refused to give such an
instruction. Instead, the judge instructed the jury on
all three of the statutes discussed above: (a) the
statutory definition of marijuana, (b) the statute
defining the punishable weight of live plants as
limited to the commonly used form of marijuana, and (c)
the charging statute, AS 11.71.040(a)(3)(F), which
prohibits possession of marijuana or any marijuana
compound or mixture having an aggregate weight of one
pound or more.
By simply instructing the jury on all three
statues without specifying the relationship between
them, the trial judge effectively allowed the defense
and the prosecution to argue competing versions of what
constituted the commonly used form of marijuana.
During the defense summation, Manesss
attorney argued that the phrase commonly used form
referred to the particular parts of the marijuana plant
that are commonly ingested by marijuana users. Relying
on the trial testimony that the buds were the only part
of the plant that marijuana users cared about, the
defense attorney argued that the jury could convict
Maness only if they found that the buds harvested from
his plants weighed one pound or more.
The prosecutor, on the other hand, reminded
the jury that the statutory definition of marijuana
includes both buds and leaves. The prosecutor told the
jury that the phrase commonly used form referred, not
to the particular parts of the plant that marijuana
users might favor, but rather to the fact that
marijuana is dried before it is used or sold. The
prosecutor explained that this is why the police dried
the marijuana harvested from Manesss plants before they
weighed it. According to the prosecutor, the jurors
could consider and, by law, were obliged to consider
the weight of both the dried leaves and the dried buds
harvested from Manesss plants when deciding whether
Maness possessed one pound or more of marijuana.
Now it may be true, as this court said in
Atkinson, that the jury must ultimately decide whether
a particular batch of marijuana introduced into
evidence by the State is (or is not) in its commonly
used form. But before the jury can decide this factual
issue, they must know the meaning of this legal phrase;
that is, the jurors must be apprised of the test that
they are to apply when assessing whether marijuana is
in its commonly used form. The definition of commonly
used form is a question of law. Thus, it is the trial
judges job to instruct the jurors concerning the
defining criteria for recognizing marijuana in its
commonly used form.
I acknowledge that it is not easy to discern
the precise meaning of commonly used form. There is no
clear relationship between the statute defining
marijuana (AS 11.71.900(14)), the statute limiting the
punishable weight of live plants to the resulting
marijuana in its commonly used form (AS 11.71.080), and
the statute that defines felony possession of marijuana
as possession of a compound or mixture that contains
some marijuana and that has a total weight of one pound
or more (AS 11.71.040(a)(3)(F)). Moreover (as
discussed below), the legislative history of this
phrase sheds little light on this issue. But it was
error for the trial judge to allow the parties to argue
differing legal definitions of the phrase commonly used
form and then leave it to the jury to decide what the
law was.
The remaining question, of course, is to
ascertain the law on this point. If Maness is correct
in suggesting that the phrase commonly used form refers
to the parts of the marijuana plant that, at the time
of his offense, were commonly ingested by marijuana
users, then his conviction must be reversed because we
have no idea whether the jury used this legal test when
deciding Manesss guilt. If, on the other hand, the
prosecutor was correct in arguing that commonly used
form refers to the leaves, buds, and flowers harvested
from a marijuana plant after they have been dried, then
Manesss conviction should be affirmed because the
error in allowing Manesss attorney to argue an
alternate version of the law (a version erroneously
favorable to Maness) would be harmless.
AS 11.71.080 the statute that defines the
punishable weight of a marijuana plant as the weight of
the marijuana harvested from it when reduced to its
commonly used form was enacted as part of a broad re-
writing of Alaskas drug laws in 1982. See SLA 1982,
ch. 45, 2, which added chapter 71 to the criminal
code. This provision began life as part of 1981 SB
190.
In the legislative debates on SB 190, there
is one portion that appears to explain the origin of AS
11.71.080. This portion occurs in the minutes of the
House Finance Committee for February 2, 1982.6 These
Finance Committee minutes describe a colloquy between
Representative Sam Cotten and Chief Prosecutor Daniel
Hickey of the Department of Law. The two men are
discussing how the normal aggregate weight test for
compounds or mixtures would apply when marijuana was
seized in the form of a live plant:
Representative Cotten ... asked if Mr.
Hickey had indicated [that] he wouldnt go by
the strict letter of the law [but] instead
... would interpret [the law in a way] he
thought ... would be more rational. Mr.
Hickey agreed [that he had said this].
Representative Cotten said [that] this
[approach wasnt consistent with] the bill.
Mr. Hickey said [that] a constrained,
technical reading of the aggregate weight
test is going to mean that if a plant weighs
in its entirety 4 ounces and has THC content,
it could conceivably support prosecution
under the bill. [Note: As originally
drafted, AS 11.71 did not punish possession
of marijuana in an amount less than 4
ounces.]
Representative Cotten asked [if it was
possible that] Mr. Hickeys intent wouldnt be
to prosecute, but somebody elses might. Mr.
Hickey agreed [that this was possible].
Representative Cotten suggested [that] the
law ought to be re-written. Mr. Hickey said
[that] maybe it not only ought to [be], but
[could] be better written.
Representative Cotten asked if [Mr.
Hickey] had any suggestions. Mr. Hickey said
[that] one [possibility] was to say 4 ounces
or X-[number of] plants, but then you get
into the battle of how big ... the plant
[can] be. There was further discussion. Mr.
Hickey said [that] a more reasonable approach
would be to attempt to define the thing in
terms of ... a substance, the aggregate
weight of which contains marijuana, and the
substance [as a] whole is in some kind of
usable form, or can be reduced to [a] usable
form that has [the specified] weight.
The upshot of this discussion was AS 11.71.080.7
But instead of incorporating Mr. Hickeys suggested
wording (usable form), the legislature chose commonly used form
thus engendering the legal issue that Maness raises.
The colloquy in the House Finance Committee does not
resolve this issue. However, I conclude that Manesss
interpretation of the statute must be rejected because it is
ultimately illogical.
Maness interprets AS 11.71.080 to mean that when the
police find marijuana plants, the punishable weight of these
plants is limited to the weight of the most commonly used part of
the plants the buds. Yet if the police arrived minutes after
these same marijuana plants were harvested, the punishable weight
of the marijuana would be determined by weighing all of the
marijuana seeds, leaves, buds, and flowers in the growers
possession. This disparity appears to make no sense, and Maness
offers no convincing rationale to explain it.
I therefore conclude that the States interpretation of
the statute is correct: when AS 11.71.080 refers to marijuana
... reduced to its commonly used form, the statute is speaking of
marijuana as defined in AS 11.71.900(14) i.e., fertile seeds,
leaves, buds, and flowers after this marijuana has been reduced
to its commonly used form i.e., harvested from the plant and
dried.
(I acknowledge that, in Atkinson, this court suggested
that marijuana in its commonly used form might include small
amounts of things that are not defined as marijuana under AS
11.71.900(14) things such as stems and other marijuana
detritus.8 For purposes of resolving Manesss case, it is not
necessary to decide whether that interpretation of the statute
should be re-evaluated.)
As explained above, the jury in Manesss case was asked
to choose between two competing interpretations of AS 11.71.080:
the States interpretation (which I conclude is correct) and
Manesss interpretation (which, for the reasons explained here, I
conclude should be rejected). Because statutory interpretation
is a question of law, it was error to ask the jury to resolve
this issue. But because this error could only have favored
Maness, the error was harmless.
When a person is convicted of possessing a pound or
more of marijuana in their residence, can the State
also convict them of the separate felony of maintaining
a building for the keeping of controlled substances,
AS 11.71.040(a)(5)?
Maness was convicted of violating AS
11.71.040(a)(5), Alaskas crack house statute. This
statute declares that it is a felony to knowingly
keep[] or maintain[] any ... dwelling, building, ... or
other structure or place that is used for keeping or
distributing controlled substances in violation of a
felony offense [defined by AS 11.71] or AS 17.30. This
language is derived from 402(a)(5) of the Uniform
Controlled Substances Act (1970).9
On appeal, Maness argues that this statute
does not apply to people who are guilty of simply
possessing controlled substances for personal use in
their homes. (Maness was charged with possession of
marijuana with intent to sell, but he was acquitted of
this charge. His felony marijuana conviction was based
on the fact that he possessed one pound or more.)
Maness did not raise this argument in the
superior court. He therefore must demonstrate that the
trial judge committed plain error by failing to
recognize this purported limitation on the reach of AS
11.71.040(a)(5) and then instructing the jury about it.
I have previously expressed my concern that,
under some circumstances, Alaskas double jeopardy
clause might be violated if a defendant received
separate convictions for possessing drugs and for
maintaining a dwelling or building to keep those same
drugs. See my concurrence in Tunnel v. State, Alaska
App. Memorandum Opinion No. 4465 (October 3, 2001),
slip opinion at 21-23.
Several other courts have recognized the
danger that a broad interpretation of their crack house
statutes would subject homeowners to double punishment
for what is essentially one act of illegally possessing
drugs. To avoid this double jeopardy problem, these
states have construed their crack house statutes to
allow a separate conviction only if the homeowner is
guilty of engaging in continuing illegal drug activity
other than simple possession of drugs. See State v.
Ceglowski, 12 P.3d 160, 163 (Wash. App. 2000); Meeks v.
State, 872 P.2d 936, 939 (Okla. Crim. App. 1994);
Howard v. State, 815 P.2d 679, 683 (Okla. Crim. App.
1991); Barnes v. State, 339 S.E.2d 229, 234 (Ga. 1986);
Tucker v. State, 308 A.2d 696, 699-700 (Md. App. 1973).
See also Annotation, Validity and
Construction of State Statutes Criminalizing the Act of
Permitting Real Property to be Used in Connection with
Illegal Drug Activities, 24 A.L.R.5th 428, 8 (1994),
which lists cases in which courts have held that crack
house statutes require proof that the premises are used
for the manufacture, sale, distribution, or use of
controlled substances by someone other than the owner
of the premises.
Nevertheless, the controlling Alaska
precedent on this issue, Davis v. State, 766 P.2d 41,
46 (Alaska App. 1988), appears to reject this position.
Moreover, with regard to the decisions from other
states, some of their statutes are worded somewhat
differently from Alaskas, and thus these decisions are
at least potentially distinguishable. (I note,
however, that Washington and Georgia, like Alaska, have
taken their statutes essentially verbatim from the
Uniform Controlled Substances Act.)
For these reasons, I conclude that even
though Maness has presented a colorable argument, he
has not demonstrated plain error.
_______________________________
1 AS 11.41.100(a)(1)(A).
2 AS 11.61.195(a)(1); AS 11.16.110(2)(B).
3 AS 11.71.040(a).
4 AS 11.71.040(a)(5); AS 11.16.110(2)(B).
5 AS 11.71.040(a)(3)(F); AS 11.16.110(2)(B).
6 AS 11.71.040(a)(2); AS 11.16.110(2)(B).
7 AS 11.71.040(a)(3)(G); AS 11.16.110(2)(B).
8 See Earley v. State, 789 P.2d 374, 376 (Alaska App. 1990);
Murdock v. State, 664 P.2d 589, 596 (Alaska App. 1983); Spietz v.
State, 531 P.2d 521, 525 (Alaska 1975).
9 977 P.2d 741, 752-53 (Alaska App. 1999).
10 See id. at 753.
11 Id.
12 9 P.3d 1028, 1037-38 (Alaska App. 2000).
13 12 P.3d 784, 794-95 (Alaska App. 2000).
14 See Carman v. State, 658 P.2d 131, 136 (Alaska App.
1983).
15 894 P.2d 672 (Alaska App. 1995).
16 Dawson, 894 P.2d at 678-79 (footnote omitted).
17 See Wolfe v. State, 24 P.3d 1252 (Alaska App. 2001).
18 719 P.2d 687 (Alaska App. 1986).
19 Id. at 690.
20 Id.
21 869 P.2d 486 (Alaska App. 1994).
22 Id. at 494.
23 Id.
24 Id.
25 27 P.3d 788 (Alaska App. 2001).
26 Id. at 788-89.
27 AS 11.71.900(14).
28 AS 11.71.040; see AS 11.71.080.
1 AS 11.71.900(14).
2 Gibson, 719 P.2d at 690.
3 Sixth-degree controlled substance misconduct under AS
11.71.060(a)(1).
4 Fourth-degree controlled substance misconduct under AS
11.71.040(a)(3)(F).
5 I note that Manesss contention is supported by the record
in Coffman v. State, Alaska App. Memorandum Opinion No. 4541
(March 6, 2002). During the superior court proceedings in
Coffman, a witness described an incident in which he and two
accomplices broke into a trailer near Willow and stole
approximately one hundred pounds of marijuana plants.
According to this witness, he and his accomplices harvested
the buds from the marijuana plants and threw away the
leaves. See Coffman, slip opinion at page 36.
6 See Tape HFC 82-4, Side 1, beginning at log no. 384.
7 On February 15, 1982 (i.e., two weeks after this
discussion), the House passed an amended version of SB 190 SB
190 am H (re-engrossed) that contained a newly-drafted AS
11.71.080. See Alaska State Legislature Senate Bill History &
Journal Index, 1981-82, p. 0658.
8 See Atkinson, 869 P.2d at 494.
9 See Dawson v. State, 894 P.2d 672, 674 (Alaska App. 1995);
Barnes v. State, 339 S.E.2d 229, 231 (Ga. 1986).
