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Whitesides v. State (04/02/2004) ap-1921
Whitesides v. State (04/02/2004) ap-1921
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
SHAUN M. WHITESIDES, )
) Court of Appeals No.
A-8274
Appellant, )
Trial Court No. 1KE-00-656 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1921 April 2, 2004]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Trevor N. Stephens,
Judge.
Appearances: Michael P. Heiser, Ketchikan,
for the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this sentence appeal, we are asked to construe AS
12.55.155(c)(1), one of the statutory aggravating factors that
authorize a sentencing judge to exceed the presumptive term of
imprisonment in cases governed by presumptive sentencing.
Subsection (c)(1) states that a defendants presumptive term can
be aggravated if a person, other than an accomplice, sustained
physical injury as a direct result of the defendants conduct.
The question presented in this appeal is whether aggravator
(c)(1) applies when a defendant illegally sells drugs and one of
the defendants customers dies from an overdose.
For the reasons explained here, we conclude that
aggravator (c)(1) normally will not apply to such cases.
However, we also conclude that another aggravator (c)(10), which
applies when the defendants conduct is among the most serious
within the definition of the offense authorizes a sentencing
judge to take the drug purchasers death into consideration when
sentencing the defendant.
Underlying facts
On July 11, 2000, the Ketchikan police
received a report of a drug overdose. When they
arrived at the scene, they discovered that the victim,
Robert Glenn, was dead. The State Medical Examiner
tentatively concluded that Glenns death was due to a
heroin overdose.
Ten days later, the Ketchikan police received
information that Shaun M. Whitesides was selling
cocaine and was also using methamphetamine. Based on
this information, the police obtained a search warrant
for Whitesidess apartment.
During the execution of that warrant, the
police found a small amount (.6 grams) of
methamphetamine. While they were there, the police
interrogated Whitesides about the report that she was
selling drugs. Whitesides initially denied selling any
drugs. But when the police informed Whitesides that
Glenn was dead, and that he appeared to have died from
a drug overdose, Whitesides began to cry. She then
admitted that Glenn had come to her, looking for
heroin, and that she had sold him a gram of heroin for
$150.
Based on the foregoing, Whitesides was
indicted for second-degree controlled substance
misconduct (sale of heroin) and fourth-degree
controlled substance misconduct (possession of
methamphetamine).1 She pleaded guilty to the methamphe
tamine possession charge, but she chose to go to trial
on the sale of heroin charge. The jury found her
guilty.
Second-degree controlled substance misconduct
is a class A felony,2 and Whitesides was a first felony
offender for presumptive sentencing purposes. The
superior court and the parties agreed that Whitesides
faced a 5-year presumptive term of imprisonment under
AS 12.55.125(c)(1) for the offense of selling heroin.
The sentencing judge, Superior Court Judge
Trevor N. Stephens, found that the defense had proved
one mitigating factor: AS 12.55.155(d)(14) that
Whitesidess offense involved only a small amount of
heroin. But Judge Stephens also found one aggravating
factor: AS 12.55.155(c)(1) that a person, other than
an accomplice, sustained physical injury as a direct
result of Whitesidess conduct.
Having found the small quantity mitigator and
the physical injury aggravator, Judge Stephens
concluded that the aggravator far outweigh[ed] the
mitigator in Whitesidess case, in large measure because
the judge concluded that Whitesides had poor prospects
for rehabilitation.
(Even though Whitesides was technically a
first felony offender for presumptive sentencing
purposes, she had a prior conviction for a drug felony
(sale of cocaine) a conviction that was set aside
after she successfully completed her suspended-
imposition-of-sentence probation.)
At the same time, Judge Stephens declared
that he would not increase Whitesidess time to serve
based on the aggravating factor. Rather, he added
3 years of suspended imprisonment to Whitesidess 5-year
presumptive term. That is, Judge Stephens sentenced
Whitesides to 8 years with 3 years suspended for the
sale of heroin.
For the remaining offense (possession of
methamphetamine), Judge Stephens sentenced Whitesides
to a consecutive term of 2 years with 1 years suspended
(six months to serve). Thus, Whitesidess composite
sentence for her two offenses is 10 years imprisonment
with 4 years suspended 5 years to serve.
Whitesides appealed her sentence. In
Whitesides v. State, Alaska App. Memorandum Opinion No.
4700 (May 7, 2003), 2003 WL 21019233, we expressed
doubt whether, as a legal matter, aggravator (c)(1)
applied to the facts of Whitesidess case. We therefore
remanded that issue to the superior court for further
consideration.
In accordance with our mandate, Judge
Stephens re-examined the meaning of aggravator (c)(1).
In a lengthy and thoughtful written opinion, Judge
Stephens concluded that aggravator (c)(1) applies to
cases in which a defendant illicitly sells a controlled
substance to a purchaser and, as a result of ingesting
the controlled substance, the purchaser dies or
sustains physical injury.
Although we appreciate the care and effort
that Judge Stephens devoted to this issue, we
respectfully disagree with his conclusion for reasons
that we explain in the next section.
Why we conclude that a drug purchasers physical injury
from ingesting drugs is not normally a direct result of
the sale by which the drug purchaser gained possession
of the drug
AS 12.55.155 (c)(1) states that a felony is
aggravated (for purposes of Alaskas presumptive
sentencing laws) if a person, other than an accomplice,
sustained physical injury as a direct result of the
defendants conduct.
Whitesides sold a small amount of heroin to
Robert Glenn. Later, Glenn ingested the heroin and
died. As a matter of physical or actual causation,
Whitesidess sale of heroin to Glenn contributed to his
death. But not all acts that physically contribute to
a result are deemed significant for purposes of
assessing criminal responsibility.3 In particular,
aggravator (c)(1) applies only to cases in which a
person suffered physical injury as a direct result of
the defendants conduct. Thus, the question in this
case is whether Glenns death was a direct result of
Whitesidess act of selling heroin to him.
More generally, the issue is this: When a
defendant sells or otherwise furnishes illegal drugs to
a willing consumer, and the consumer later dies of an
overdose after taking these drugs, can this death be
termed a direct result of the defendants conduct for
purposes of applying aggravator (c)(1) to increase the
defendants presumptive sentence?
The legislatures commentary to AS 12.55.155
does not explain what they meant by the term direct
result; in fact, the legislative commentary does not
address aggravator (c)(1) at all.4 However, the normal
meaning of the words direct and result imply that the
defendants conduct must, at a minimum, be a proximate
cause of the victims physical injury before the victims
injury could be said to be a direct result of the
defendants conduct.
By proximate cause, we mean a physical
(actual) cause which, in the eyes of the law, is
significant enough under the circumstances of the case
to support a finding that the defendant is responsible
for the victims physical injury. Because proximate
cause ultimately hinges not only on questions of
physical causation but also on questions of law and
policy, it can sometimes be a difficult concept to
apply. However, in both civil and criminal contexts,
the appellate courts of Alaska have stated that a
defendants conduct can normally be viewed as a
proximate cause of an ensuing injury if the defendants
conduct was a substantial factor in causing that
injury.5
In his written decision on remand, Judge
Stephens concluded that, for purposes of aggravator
(c)(1), a defendants conduct should be deemed a direct
cause of another persons physical injury if the
defendants conduct was a proximate cause of that
injury. Or worded another way, a defendants conduct
should be deemed a direct cause of someones physical
injury if that conduct was a substantial factor in
causing the injury.
(This is not to say that the defendant could
necessarily be found criminally liable for causing that
injury for, in addition to proving that the defendants
conduct caused the harm, the government would normally
have to prove that the defendant acted with one or more
culpable mental states.)
The State urges us to adopt this
interpretation of aggravator (c)(1) and to affirm Judge
Stephenss application of this aggravator to Whitesidess
case.
As the State points out, Titles 11 and 12 of
the Alaska Statutes contain no other references to
direct result (or its counterpart, direct cause).
These two titles generally afford little insight into
what the legislature may have meant by the phrase.
However, the legislature has used the phrase direct
result in two other places: Title 17 and Title 16.
Title 17 contains two statutes that limit the
liability of food banks, and the liability of persons
who donate food to food banks, for injuries or death
caused by the distributed food. AS 17.20.346(a) states
that a food bank is immune from civil or criminal
liability for injury or death attributable to the
condition of the food it distributes, so long as the
injury or death is not a direct result of the
negligence, recklessness, or intentional misconduct of
the food bank. (Emphasis added) Here, the legislature
left no doubt that its use of the term direct result
was deliberate because, in the same session law that
created AS 17.20.346(a), the legislature also enacted
AS 17.20.345(a), a statute that protects people who
donate food to food banks from criminal or civil
liability for injury or death attributable to the food,
so long as the injury or death is not a result of the
donors gross negligence, recklessness, or intentional
misconduct. (Emphasis added)
The legislature appears to have picked its
language with some care. The first statute says that a
food bank can not be found liable unless (1) the food
bank acted with negligence and (2) this act of
negligence was a direct cause of the injury or death.
The second statute, on the other hand, says that a
donor to a food bank can not be found liable unless (1)
the donor acted with gross negligence, but (2) this act
of gross negligence need only be a cause of the
resulting injury, not a direct cause.
Although these statutes deal with the
donation and distribution of food rather than the
illegal distribution of drugs, they appear to be
instructive in Whitesidess case. These statutes
suggest that the legislature views the phrase direct
result as meaning something different from result.
If food bank employees act with the requisite
culpable mental state, the food bank will be held
liable for injuries that are the direct result of their
distribution of tainted food. Food donors, on the
other hand, only set the stage for the eventual
distribution of the food that they donate. Thus, the
legislature has decided that a donor can be held liable
for injuries that merely result from their donation of
food but only if the donor has acted with at least
gross negligence.
A similar restrictive use of direct result is
found in Title 16 specifically, in AS 16.05.662, a
statute that authorizes the issuance of no-cost permits
to fishing derby associations to allow the sale of
sport caught fish obtained as a direct result of a
fishing derby. (Emphasis added) That is, this statute
carves out a narrow exception to the general rule that
a license is required for any commercial catching or
sale of fish.6 Given the comprehensive character of
this states fish and game licensing laws, it appears
that the legislature advisedly chose the phrase direct
result to clarify the limited scope of the fishing
derby exemption.
Thus, in both Title 17 and Title 16, the
Alaska Legislature has used the phrase direct result in
ways that suggest a tighter connection between cause
and effect than would be required to establish
proximate cause i.e., a tighter connection than would
be required to establish that the actors conduct was a
substantial factor in causing the prohibited result.
Moreover, as we noted in our first decision
in this case, courts from around the country are split
on the question of whether a drug seller can be held
criminally liable for the ensuing injury or death of a
drug purchaser, at least when the seller has no reason
to believe that the drugs being sold are atypically
dangerous or that the purchaser is atypically
susceptible to drug-induced injury. See Whitesides,
Memorandum Opinion No. 4700 at 9-10, 2003 WL 2109233 at
*5.
Given the Alaska legislatures other uses of
the phrase direct result in contexts that imply a
stricter test than proximate cause, and given the split
in the case law on the related topic of a drug sellers
potential criminal liability for a drug purchasers
ensuing injuries, we conclude that there is substantial
reason to believe that the legislature intended
aggravator (c)(1) to codify a more stringent test than
merely proximate cause or substantial factor.
At best, the interpretation of aggravator
(c)(1) adopted by the superior court and endorsed by
the State is only arguable. We therefore must
interpret the aggravator against the government. See
Brookins v. State, 600 P.2d 12, 17 (Alaska 1979), and
State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App.
1983) (recognizing and applying the rule that
ambiguities in penal statutes are to be construed
against the government). In particular, see Mancini v.
State, 841 P.2d 184, 188-89 (Alaska App. 1992), and
Kuvaas v. State, 696 P.2d 684, 685 (Alaska App. 1985),
cases in which we applied this rule of construction
when interpreting aggravators (c)(15) and (c)(20),
respectively.
For this reason, we reverse the decision of
the superior court regarding the applicability of
aggravator (c)(1) to Whitesidess case, and we remand
this case to the superior court for resentencing.
The potential applicability of aggravator (c)(10)
Even though we have concluded that aggravator
(c)(1) is not applicable to Whitesidess case, our prior
decisions construing aggravator (c)(10) (conduct among
the most serious included in the definition of the
offense) suggest that this aggravator may be applicable
here.
In Martin v. State, 973 P.2d 1151 (Alaska
App. 1999), we ruled that when a sentencing judge
evaluates the seriousness of a drug offense for
purposes of aggravator (c)(10), the judge is not
limited to consideration of the circumstances directly
relating to [the] delivery of the [controlled
substance].7 Thus, in Martin, we upheld the sentencing
judges consideration of the fact that the defendants
delivery of cocaine to a woman was part of the
defendants design to sexually assault the woman.
As we noted in our Martin opinion, the
sentencing judge declared that he want[ed] to emphasize
... that the defendant [was] not being sentenced for
sexual assault, but he nevertheless concluded that it
was impossible to ignore that [sexual assault] or to
separate it out, since [the assault] was part of the
circumstances.8 We upheld the sentencing judges
analysis against Martins contention that this analysis
impermissibly broadened the scope of aggravator
(c)(10):
It is true that aggravator (c)(10)
focuses on the defendants conduct, not the
defendants personal characteristics. But
[the sentencing judge] did not rely on
Martins personal characteristics; he based
his decision on Martins motive for giving
cocaine to K.W. and on the conduct that
ultimately accompanied Martins delivery of
this drug. This was proper. Our prior
decisions construing aggravator (c)(10) are
inconsistent with the restrictive definition
of conduct that Martin proposes.
For example, in Curl v. State, [843 P.2d
1244 (Alaska App. 1992),] the defendant was
convicted of a single count of sexual abuse
of a minor. The sentencing judge found
aggravator (c)(10) based on evidence that the
charged incident of sexual abuse was but one
of a series of twenty to twenty-five similar
episodes, committed over a period of
approximately four months, many of which
apparently involved multiple acts of sexual
contact. We upheld the sentencing judges
finding of aggravator (c)(10). [Id. at
1245.]
And in Machado v. State, [797 P.2d 677
(Alaska App. 1990),] the defendant was
sentenced for perjury. The sentencing judge
found aggravator (c)(10) based on the fact
that Machados perjury went to a material
issue and the fact that Machado committed the
perjury in an attempt to escape prosecution
for his part in a car bombing. We upheld the
sentencing judges finding of aggravator
(c)(10). [Id. at 690.] In particular, we
noted that Machados motive for giving the
false testimony ... seem[s] to make his
offense particularly severe. [Id.]
We therefore conclude that [the
sentencing judge] properly considered Martins
motive for delivering cocaine to K.W.. And,
because [the judge] concluded that Martins
motive for this crime was to accomplish a
sexual assault, [the judge] could properly
conclude that Martins ensuing physical and
sexual assaults on K.W. were related to the
delivery of cocaine and aggravated that
offense.
Martin, 973 P.2d at 1155-56.
We upheld a similarly broad
application of aggravator (c)(10) in Brown v.
State, 12 P.3d 201, 207 (Alaska App. 2000),
where the defendant was convicted of
tampering with evidence, and the government
sought to prove aggravator (c)(10) by showing
that the defendant was actually guilty (as an
accomplice) of the crimes to which the
tampered-with evidence was pertinent. And
see Griffin v. State, 9 P.3d 301, 307 (Alaska
App. 2000), where the defendant was convicted
of theft, and the sentencing judge found
aggravator (c)(10) based on the fact that the
defendant was actually guilty of burglary as
well as theft. Finally, see Monroe v. State,
752 P.2d 1017, 1021 (Alaska App.1988), where
this Court upheld the sentencing judges
finding of aggravator (c)(10) based on the
fact that the defendants arson had endangered
a large number of people (rather than the one
person minimally necessary to constitute the
offense of first-degree arson).
Whitesidess offense was the
delivery of a concededly small amount of
heroin to a willing purchaser. Robert Glenns
death was apparently unexpected, and, based
on the medical examiners preliminary findings
(which revealed a blood alcohol level of
0.19), Glenns death may have been partly due
to his consumption of alcohol at the time he
took the heroin. The State does not contend
that Whitesides should be held criminally
responsible for that death. Nevertheless, a
reasonable judge might conclude, echoing the
words of the sentencing judge in Martin, that
it would be impossible to ignore that [death]
or to separate it out, since [Glenns death]
was part of the circumstances of Whitesidess
offense.
We do not decide this issue now
for Whitesides has not had the opportunity to
analyze these cases and respond to this
argument. However, we conclude that Judge
Stephens should at least be allowed to
consider, if he wishes, the question of
whether the circumstance of Glenns death
makes aggravator (c)(10) applicable to
Whitesidess case.
Conclusion
The decision of the superior court regarding
aggravator (c)(1) is REVERSED, and this case is
REMANDED to the superior court so that Whitesides
can be resentenced. If Judge Stephens wishes, he
is authorized to consider the applicability of
aggravator (c)(10) to Whitesidess case.
_______________________________
1 AS 11.71.020(a)(1) and AS 11.71.040(a)(3)(A),
respectively.
2 AS 11.71.020(c).
3 See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd
edition 1982), pp. 771-72.
4 See 1978 Senate Journal, Supp. No. 47 (June 12th), pp. 159-
161.
5 See Dura Corporation v. Harned, 703 P.2d 396, 406 (Alaska
1985); State v. Malone, 819 P.2d 34, 36-37, 39 (Alaska App.
1991).
6 See AS 16.05.680.
7 Martin, 973 P.2d at 1155.
8 Id.
