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Noy v. State (8/29/2003) ap-1897
Noy v. State (8/29/2003) ap-1897
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
DAVID S. NOY, )
) Court of Appeals No. A-
8327
Appellant, ) Trial
Court No. 4FA-01-3003 CR
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1897 August 29, 2003]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: William R. Satterberg, Jr., Law
Offices of William R. Satterberg, Jr.,
Fairbanks, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge
A jury convicted David S. Noy of violating AS
11.71.060(a), which prohibits possession of less than eight
ounces of marijuana. The marijuana was found in Noys home. Noy
appeals his conviction, arguing that he was convicted for
engaging in conduct (possession of marijuana for personal use in
ones home) that is protected by the privacy provision of the
Alaska Constitution (article I, section 22).1
We agree that Noy may have been convicted for conduct
that is constitutionally protected. As we explain here, Alaska
citizens have the right to possess less than four ounces of
marijuana in their home for personal use. Accordingly, we
reverse Noys conviction. The State remains free to retry Noy if
the State believes it can prove that Noy possessed at least four
ounces of marijuana.
Noy also claims that the district court should have
allowed him to raise the defense of medical necessity. However,
as we explain, the district court properly rejected Noys proposed
defense.
Facts of the case
The North Pole police contacted Noy at his home and
told him they smelled growing marijuana. The police searched
Noys house and found approximately eleven ounces of harvested
marijuana, consisting of buds, leaves, and stalks. The police
also found five immature marijuana plants. The police did not,
however, find any scales or packaging material; nor was there any
other evidence that Noy was engaged in any commercial conduct
involving marijuana.
Except for the immature plants, all the plant material
including the buds, leaves, and stalks was placed in a paper bag
and sent to the state crime lab for identification and weighing.
The immature plants were not tested, nor did they form part of
the States case. Ultimately, Noy was charged with possessing
more than eight ounces of harvested marijuana.
At trial, however, the State did not offer the paper
bag in evidence. Therefore, the jury had to rely on testimony
and photographs showing what the police had placed in the bag.
Based on the testimony and photographs, the paper bag obviously
contained stalks along with buds and leaves. Among other things,
the jury was instructed that [m]arijuana means the seeds, leaves,
buds, and flowers of the plant, Cannabis, whether growing or not,
but it does not include the stalks of the plants, or fiber
produced from the stalks. The jury found Noy not guilty of
possessing eight ounces or more of marijuana, but guilty of
possessing less than eight ounces.
Alaska Statute 11.71.060(a)(1), the statute that
prohibits possession of less than eight ounces of
marijuana under any and all circumstances, violates
article I, section 22 of the Alaska Constitution as
construed in Ravin v. State
Noy was convicted under AS 11.71.060(a)(1), which makes
it a class B misdemeanor to use or display any amount of
marijuana, or to possess one or more preparations, compounds,
mixtures, or substances containing marijuana of an aggregate
weight of less than one-half pound.2 This statute criminalizes
conduct that the Alaska Supreme Court has declared is protected
under article I, section 22 of the Alaska Constitution.
Article I, section 22 states: The right of the people
to privacy is recognized and shall not be infringed. The
legislature shall implement this section.
In Ravin, the Alaska Supreme Court held that this
provision of our constitution protects possession of marijuana
for personal use in ones home. The court acknowledged that there
is no fundamental right to possess or ingest marijuana.
Nevertheless, the court held that article I, section 22 gives
people a heightened expectation of privacy with respect to their
personal activities within their home.3 The court held that this
heightened right of privacy encompass[ed] the possession and
ingestion of ... marijuana in a purely personal, non-commercial
context in the home unless the state could show that such an
intrusion into peoples privacy bore a close and substantial
relationship ... to a legitimate governmental interest that is,
unless the state proved that the public health or welfare [would]
in fact suffer if private possession of marijuana were not
prohibited.4
The supreme court concluded that the state had
demonstrated a substantial interest in regulating the use of
marijuana by drivers, in prohibiting the use of marijuana by
children, in regulating the use or possession of marijuana in
public places, and in regulating the buying and selling of
marijuana.5 The supreme court added that the state could validly
prohibit [p]ossession at home of amounts of marijuana indicative
of [an] intent to sell rather than possession for personal use.6
However, the court concluded that the state had shown no adequate
justification for ... prohibit[ing] possession of marijuana by an
adult for personal consumption in the home.7
In 1975, following the supreme courts decision in
Ravin, the Alaska Legislature amended AS 17.12 (the then-existing
marijuana laws) to take into account the supreme courts ruling.
The legislature exempted marijuana from the normal penalties for
possession of depressant, hallucinogenic, or stimulant drugs8 and
enacted two special provisions governing marijuana possession:
former AS 17.12.110(d) and (e).9
Former AS 17.12.110(d) prohibited public use of
marijuana, possession of more than an ounce of marijuana in a
public place, possession of any amount of marijuana while
operating a motor vehicle or airplane, and possession of any
amount of marijuana by a minor. The maximum penalty for
violating these provisions was a fine of $1,000.
Former AS 17.12.110(e) prohibited possession by an
adult of one ounce or less of marijuana in a public place. It
also prohibited possession by an adult of any amount of marijuana
for personal use in a non-public place. This second provision
clearly encompassed possession of marijuana in ones home for
personal use conduct that, in Ravin, the supreme court had said
was protected from governmental intrusion. However, the
legislature declared that there was no criminal penalty for
violating subsection (e); rather, the offender faced a civil fine
of not more than $100.
Seven years later, in 1982, the legislature moved
Alaskas drug laws from Title 17 to Title 11. The provisions of
AS 17.12 dealing with marijuana were repealed, and new marijuana
provisions were enacted in AS 11.71.10 In this 1982 revision of
the marijuana laws, the legislature dropped the civil fine for
possession of marijuana for personal use in a non-public place
thus ending any potential conflict with Ravin.
Under the newly enacted AS 11.71.050(a)(3)(E),
possession of eight ounces or more of marijuana was made a class
A misdemeanor. Under the newly enacted AS 11.71.060(a)(4),
possession of four ounces or more of marijuana was made a class B
misdemeanor.11 The legislature also made it a violation to
possess any amount of marijuana in a public place.12 However, no
statute prohibited possession of less than four ounces of
marijuana for personal use in a non-public place.
In other words, following the legislatures 1982
revision of the marijuana laws, there was no penalty (whether
criminal or civil) for possessing less than four ounces of
marijuana in ones home for personal use. But this changed in
1990.
In the general election of 1990, the voters of Alaska
approved a ballot proposition that amended AS 11.71.060(a) and
repealed AS 11.71.070.13 Under the amended (that is, the
current) version of AS 11.71.060(a), possession of any amount of
marijuana less than eight ounces is a class B misdemeanor.14
This is the statute that Noy violated.
The question presented in this case is whether AS
11.71.060(a) is constitutional to the extent that it prohibits
possession of marijuana by adults in their homes for personal
use.
On one level, the answer is straightforward. The
Alaska Supreme Court ruled in Ravin that the right of privacy
codified in article I, section 22 of our state constitution
protects the right of adults to possess marijuana in their homes
for personal use. When a statute conflicts with a provision of
our state constitution, the statute must give way.15 Thus, a
statute which purports to attach criminal penalties to
constitutionally protected conduct is void.
On a deeper level, the question is whether the voters
of Alaska can, through the initiative process, abrogate a
constitutional ruling of the Alaska Supreme Court in particular,
the courts ruling in Ravin that article I, section 22 of our
state constitution protects an adults right to possess marijuana
in the home for personal use. The answer to this question is
found in the Alaska Constitution itself. Article XII, section 11
states that the people of this state, through the ballot
initiative process, may exercise the law-making powers assigned
to the legislature (subject to the limitations codified in
article XI of the constitution). That is, the initiative process
constitutes a method by which the people of this state can
directly enact legislation.
But just as the statutes enacted through the normal
legislative process must not violate the constitution, the
statutes enacted by ballot initiative must not violate the
constitution.16 Thus, even though the voters enacted AS
11.71.060(a)(1) through the initiative process, the
constitutionality of this statute must be assessed in the same
way as if it had been enacted through the normal legislative
process. And, as we have said, this statute contravenes the
constitutional right of privacy as interpreted by our supreme
court in Ravin because it declares that any possession of
marijuana by adults in their homes for personal use is a crime.
Alaska Statute 11.71.060(a) must be limited to preserve
its constitutionality
We have concluded that AS 11.71.060(a)(1) is
unconstitutional to the extent that it proscribes marijuana
possession that, under the Ravin decision, is protected by
article I, section 22 of the Alaska Constitution. But this does
not mean that the statute is unconstitutional in its entirety.
In Ravin, the supreme court acknowledged that the legislature
could validly prohibit possession of marijuana in the home if the
marijuana was of such a quantity as to be indicative of
[possession with] intent to sell rather than possession for
personal use.17 Thus, in Walker v. State18 we held that the
legislature could validly prohibit possession of eight ounces or
more of marijuana even if the marijuana was possessed by an
adult in their home for personal use.19
The question inherent in this analysis is whether,
consistent with Ravin, the legislature might validly prohibit all
instances of marijuana possession in some amount less than eight
ounces. As we noted in Walker, the Ravin decision does not
elaborate on what amount of marijuana might constitute an amount
... indicative of intent to sell.20
Before the marijuana laws were amended by voter
initiative in 1990, the Alaska Legislature had (by statute)
defined the amount of marijuana that adults could lawfully
possess in their home for personal use. Under the pre-1990
statutes governing marijuana possession, an adult could be
prosecuted for possessing four ounces or more of marijuana in
their home for personal use. Possession of less than this amount
was not a crime.21
There are no appellate cases testing the
constitutionality of the legislatures four-ounce dividing line.
However, Noy has not argued that this four-ounce dividing line
violates Ravin. We note, moreover, that article I, section 22
entrusts the legislature with the duty of implementing the
constitutional right of privacy. Given the language of article
I, section 22, and given the deference that we should pay to the
decision of a co-equal branch of government, we conclude that the
legislatures four-ounce dividing line is presumptively
constitutional under Ravin.
Although we have declared that the current version of
AS 11.71.060(a) is unconstitutional (because it prohibits conduct
that is constitutionally protected), we have a duty to preserve
the statute to the extent possible that is, to the extent that
it is consistent with the constitution.22 The pre-1990 version
of the statute contained a four-ounce ceiling on marijuana
possession in the home by adults for personal use a ceiling that
is presumptively constitutional. The 1990 voter initiative
expanded the scope of AS 11.71.060(a) by eliminating this four-
ounce ceiling and declaring that all possession of marijuana by
adults in their homes for personal use was illegal. In this new
version, the statute violates article I, section 22 of the
constitution. To make the statute conform to the constitution
again, we must return it to its pre-1990 version.
We thus conclude that, with respect to possession of
marijuana by adults in their home for personal use (conduct that
is protected under the Ravin decision), AS 11.71.060(a)(1)
remains constitutional to the extent that it prohibits possession
of four ounces or more of marijuana. Restricted in this fashion,
AS 11.71.060(a)(1) remains enforceable.
Noy is entitled to a new trial
We have ruled that AS 11.71.060(a) validly continues to
prohibit possession of four ounces or more of marijuana, even
when the possession is by adults in their home for personal use.
But it is possible that the jury convicted Noy even though they
believed that he possessed less than this amount. For this
reason, we must reverse Noys conviction.
As explained earlier in this opinion, Noy was
prosecuted under AS 11.71.050(a) for possessing eight ounces or
more of marijuana. The jury acquitted Noy of this charge, but
convicted him under AS 11.71.060(a) for possessing some amount of
marijuana less than eight ounces. The problem is that the jury
was not asked to determine what lesser amount of marijuana Noy
possessed.
The State remains free to retry Noy for marijuana
possession. However, because the jury acquitted Noy of
possessing eight ounces or more of marijuana, the State is
collaterally estopped from asserting that Noy possessed eight
ounces or more. The State can, however, claim that Noy possessed
at least four ounces of marijuana enough to justify a conviction
under AS 11.71.060(a)(1) (as we now have limited it).
Was Noy entitled to raise a common law defense of
medical necessity?
At trial, Noy argued that he was entitled to have the
jury decide whether his possession of marijuana was justified by
medical necessity under AS 11.81.320. The trial judge, District
Court Judge Jane F. Kauvar, ruled that Noy could not avail
himself of the normal defense of necessity under AS 11.81.320.
Rather, Judge Kauvar ruled, Noy could only assert the affirmative
defense for the medical use of marijuana codified in
AS 11.71.090.
Judge Kauvars ruling was based on the wording of AS
11.81.320. This statute declares that the defense of necessity
remains available to the extent permitted by common law unless
[Title 11 or another] statute defining the offense provides
exemptions or defenses dealing with the justification of
necessity in the specific situation involved, or unless a
legislative intent to exclude the justification of necessity ...
otherwise plainly appear[s].23
Judge Kauvar noted that the legislature has enacted
another statute, AS 11.71.090, that specifically deals with the
defense of medical necessity for the possession of marijuana.
Because of this, Judge Kauvar ruled that Noys claim of medical
necessity for his possession of marijuana had to be raised and
litigated under AS 11.71.090 rather than under the general
necessity defense codified in AS 11.81.320.
This ruling was correct. The general necessity defense
statute, AS 11.81.320, expressly states that a more specific
statute takes precedence. Noy asserted that he had a medical
need to use marijuana. Alaska Statute 11.71.090 specifically
addresses this issue, and defines a separate affirmative defense
of medical necessity to possess marijuana. Noys claim of
necessity was therefore governed by the specific necessity
statute, AS 11.71.090, rather than by the general necessity
statute, AS 11.81.320.
Jury instructions
Noy does not contest the jury instructions that were
given at his trial. However, because Noy may be retried, we
believe we should address the States contention that Judge Kauvar
inaccurately instructed the jury concerning how to determine the
weight of harvested marijuana.
Judge Kauvar properly instructed the jury that
[m]arijuana means the seeds, leaves, buds, and flowers of the
plant[.]24 But Judge Kauvar also instructed the jury that the
aggregate weight of a live marijuana plant was the weight of the
marijuana when reduced to its commonly used form. Based on this
instruction, Noy urged the jury to consider only the aggregate
weight of the buds in determining how much marijuana he had
possessed. But the commonly used form of marijuana is only
relevant when a person is charged with possessing live marijuana
plants.25 Noy was only charged with possessing harvested
marijuana. Therefore, in the event of a retrial, assuming the
State again charges Noy with possessing only harvested marijuana,
the district court should not instruct the jury on how to
determine the aggregate weight of live marijuana, or allow the
parties to argue about the definition of the commonly used form
of marijuana.
Conclusion
To make AS 11.71.060(a)(1) consistent with article I,
section 22 of the Alaska Constitution as interpreted in Ravin, we
must limit the scope of the statute. As currently written, the
statute prohibits possession of any amount of marijuana. But
with regard to possession of marijuana by adults in their home
for personal use, AS 11.71.060(a)(1) must be interpreted to
prohibit only the possession of four ounces or more of marijuana.
The judgment of the district court is REVERSED.
_______________________________
1 See Ravin v. State, 537 P.2d 494 (Alaska 1975).
2 AS 11.71.060(a)(1) & (b).
3 Ravin, 537 P.2d at 504-12.
4 Id. at 504, 511.
5 Id. at 511.
6 Id.
7 Id.
8 Former AS 17.12.110(a), as amended by ch. 110, 1, SLA
1975.
9 Ch. 110, 1, SLA 1975.
10 Ch. 45, 26, SLA 1982 (the repeal of AS 17.12) and 2
(the enactment of AS 11.71).
11 The 1982 version of AS 11.71.060(a) also prohibited use
of marijuana in a public place, or possession of one ounce or
more of marijuana in a public place, or possession of any amount
of marijuana while operating a motor vehicle, or possession of
any amount of marijuana by a person under 19 years of age.
12 Former AS 11.71.070(a)(2).
13 1990 Initiative Proposal No. 2, 1-2.
14 AS 11.71.060(a)(1) and (b).
15 See Falcon v. Alaska Public Offices Commn, 570 P.2d 469,
480 (Alaska 1977); Ravin, 537 P.2d at 511.
16 See Alaskans for Legislative Reform v. State, 887 P.2d
960, 962, 966 (Alaska 1994); Citizens Coalition for Tort Reform
v. McAlpine, 810 P.2d 162, 168 (Alaska 1991).
17 537 P.2d at 511.
18 991 P.2d 799 (Alaska App. 1999).
19 Id.
20 Id. (quoting Ravin, 537 P.2d at 511).
21 See former AS 11.71.060 and AS 11.71.070.
22 See Hoffman v. State, 404 P.2d 644, 646 (Alaska 1965)
(ruling that if a statute may be reasonably construed to avoid
unconstitutionality, the court must do so).
23 AS 11.81.320(a)(1)-(2).
24 See AS 11.71.900(14).
25 See Maness v. State, 49 P.3d 1128, 1134 (Alaska App.
2002) (quoting Gibson v. State, 719 P.2d 687, 690 (Alaska App.
1986)) (the commonly used form language of AS 11.71.080 refers to
the method of calculating the aggregate weight of live marijuana
plants).
