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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MURVILLE LAVELLE LAMPKIN, | ) |
| ) Court of Appeals No. A-8760 | |
| Appellant, | ) Trial Court No. 3AN-02-725 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2059 August 11, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Stephanie E.
Joannides, Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, Anchorage, for the Appellant. W. H.
Hawley Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
While Murville Lavelle Lampkin was serving a jail
sentence, guards discovered that he was in possession of
oxycodone and tetrahydrocannabinol. Lampkin was convicted of
fourth-degree controlled substance misconduct for possessing the
oxycodone, and fifth-degree controlled substance misconduct for
possessing the tetrahydrocannabinol.1 In addition, because
Lampkin was a prisoner in the jail, he was convicted of promoting
contraband in the first degree for possessing these two
controlled substances.2
In this appeal, Lampkin contends that, under the double
jeopardy clause of the Alaska Constitution, he can not be
convicted of the two drug possession charges (the fourth- and
fifth-degree controlled substance misconduct charges) when, at
the same time, he stands convicted of the promoting contraband
charge.
Lampkin argues that his separate convictions violate
the rule announced by the Alaska Supreme Court in Whitton v.
State, 479 P.2d 302 (Alaska 1970). Lampkin also argues (in the
alternative) that the two drug possession charges are lesser
included offenses of the promoting contraband charge, and thus
the Alaska Supreme Courts decision in Tuckfield v. State, 621
P.2d 1350 (Alaska 1981), bars separate convictions on the drug
possession charges.
The supreme courts decision in Whitton deals with the
problem presented when a defendants single act violates two
criminal statutes. Whitton provides the ground rules for
determining whether the two statutes should be viewed as defining
a single offense for double jeopardy purposes. See Erickson v.
State, 950 P.2d 580, 583 (Alaska App. 1997).
Whitton directs us to consider the basic interests of
society to be vindicated or protected by the two statutes, as
well as the broad objectives of [the] criminal law[,] such as
punishment of the criminal for his crime, rehabilitation of the
criminal, and the prevention of future crimes. Whitton, 479 P.2d
at 312.
Here, we readily conclude that the two statutes
constitute separate crimes for purposes of the Whitton analysis.
Society has an interest in preventing or discouraging the
unauthorized possession of controlled substances; it has a
separate interest in preventing or discouraging the introduction
of contraband into correctional facilities.
In addition, both first-degree promotion of contraband
and fourth-degree controlled substance misconduct (unlawful
possession of a schedule IA or schedule IIA controlled substance)
are class C felonies.3 If we were to declare that Lampkin could
be convicted of only one crime promoting contraband for his
possession in jail of oxycodone (a schedule IA controlled
substance4), the practical effect of our ruling would be that
prisoners would face no greater punishment for possession of a
schedule IA or schedule IIA controlled substance in jail than
they would face if they possessed these controlled substances
elsewhere. In Mead v. State, 489 P.2d 738 (Alaska 1971), the
Alaska Supreme Court pointed out this same problem when the court
ruled that Whitton allows separate convictions for burglary
(i.e., breaking into a building with intent to steal) and the
ensuing act of theft:
If conviction for burglary alone were
permitted, the successful burglar [i.e., the
burglar who succeeds in committing a theft
inside the building] would receive no greater
punishment than the unsuccessful one.
[Conversely, if] conviction for larceny alone
were allowed, ... private areas where our
citizens have historically maintained
reasonable expectations of greater privacy
would receive no more protection against
theft than public halls.
Mead, 490 P.2d at 741-42.
The supreme court has repeatedly
upheld separate criminal convictions when a
defendants single act violated two statutes,
as long as each statute protected a separate
societal interest. See Jacinth v. State, 593
P.2d 263, 266-67 (Alaska 1979), where the
supreme court upheld separate convictions for
arson and manslaughter when the defendant set
fire to a movie theater and accidentally
killed a man who lived inside the building;
Catlett v. State, 585 P.2d 553, 558 (Alaska
1978), where the supreme court upheld
separate convictions for grand larceny and
for stealing or removing parts of an aircraft
when the defendant had committed a single act
of removing a pair of landing skis from a
float plane; and Drahosh v. State, 442 P.2d
44, 49 (Alaska 1968), where the supreme court
held that a person can be separately
convicted for leaving the scene of a motor
vehicle accident and for failing to render
aid to persons injured in that accident.
Based on these cases, and based on
our conclusion that society has a significant
independent interest in preventing or
discouraging the introduction of contraband
substances into correctional facilities, we
hold that, consistent with Whitton, Lampkin
can be separately convicted and punished for,
on the one hand, promoting contraband and, on
the other hand, the two counts of controlled
substance misconduct.
This leaves Lampkins argument that,
even if his separate convictions survive a
Whitton analysis, separate convictions are
nevertheless barred under Tuckfield because
the promoting contraband charge and the two
drug possession charges stand in the
relationship of greater offense and lesser
offenses.
Under Alaskas cognate approach to
lesser included offenses, an offense is a
lesser included offense of another charged
offense if, given the way the case was
charged and litigated, it would be impossible
for the jury to conclude that the defendant
was guilty of the purported greater offense
without also concluding that the defendant
was guilty of the purported lesser offense.5
Thus, to answer Lampkins argument, we must
examine the elements of the offenses as
charged and proved in this case.
Both of the drug possession charges
required the State to prove that Lampkin
knowingly possessed the controlled substance
at issue oxycodone for the fourth-degree
controlled substance misconduct charge, and
tetrahydrocannabinol for the fifth-degree
controlled substance misconduct charge. See
AS 11.81.610(b)(1), which declares that
knowingly is the culpable mental state that
presumptively applies to conduct here,
Lampkins acts of possession.
The promoting contraband charge
required the State to prove that Lampkin
violated the basic form of this crime
promoting contraband in the second-degree by
possess[ing] ... anything that [the] person
knows to be contraband while the person is
under official detention in a correctional
facility. AS 11.56.380(a)(2). In addition,
the State was obliged to prove the
aggravating circumstance that raised the
degree of Lampkins offense from second-degree
to first-degree: the fact that the
contraband at issue was a controlled
substance. AS 11.56.375(a)(3).
At first blush, it might appear
that, under the facts of Lampkins case,
promoting contraband was merely an aggravated
form of drug possession. That is, one might
argue that Lampkins basic crime was drug
possession, and that this drug possession
became promoting contraband because the drug
possession took place in a correctional
facility. But the State argues that this is
not so.
The State points out that, under
the basic definition of promoting contraband
codified in AS 11.56.380(a), the State must
prove that the defendant knew that the
article they possessed was contraband that
is, knew it was an article that was barred by
law from a correctional facility. (See the
definition of contraband found in AS
11.56.390.) However, the definition of first-
degree promoting contraband codified in AS
11.56.375(a) does not prescribe a culpable
mental state regarding the aggravating
circumstance that the contraband is a
controlled substance.
Because the first-degree promoting
contraband statute is silent with regard to
the culpable mental state that must be proved
concerning the defendants awareness that the
article of contraband is a controlled
substance, the State urges us to follow the
reasoning of cases such as Bell v. State, 668
P.2d 829, 833 (Alaska App. 1983), and Ortberg
v. State, 751 P.2d 1368, 1374 (Alaska App.
1988). In both Bell and Ortberg, this Court
held that, consistent with due process, the
legislature can impose strict liability with
regard to certain aggravating elements of an
offense, so long as the offense, viewed in
its totality, is defined so as to require
proof that the defendant acted with a
sufficient awareness or consciousness of
wrongdoing.
If we were to follow the States
suggestion and interpret the first-degree
promoting contraband statute so as not to
require proof of any culpable mental state
with regard to the aggravating circumstance
that the contraband is a controlled
substance, this would eliminate any potential
Tuckfield problem because, then, the
promoting contraband charge and the two drug
possession charges would clearly not stand in
the relationship of greater offense and
lesser included offenses. Rather, each would
require proof of an element that the other
did not.
The drug possession charges would
require proof that Lampkin knew that the
object in his possession was oxycodone or
tetrahydrocannibinol. On the other hand, the
promoting contraband charge would only
require proof that Lampkin knew that the
object in his possession was contraband
(i.e., any object that was not allowed in
correctional facilities). (The State would
also be required to prove that this object
was, in fact, a controlled substance, and
that Lampkins possession of this object took
place in a correctional facility.)
With the two offenses defined this
way, it would be logically possible for a
jury to conclude that Lampkin was guilty of
promoting contraband (i.e., that Lampkin
acted knowingly with respect to the fact that
the object in his possession was contraband)
and yet, at the same time, conclude that
Lampkin was not guilty of the drug possession
charges (i.e., that the State had failed to
prove that Lampkin knew that the object of
contraband in his possession was in fact a
controlled substance). Because these
verdicts would be logically reconcilable, the
offenses would not stand in the relationship
of greater offense and lesser included
offenses.
We need not decide whether the
States suggested interpretation of the first-
degree promoting contraband statute is
correct. That is, we need not decide whether
a prisoner faces strict liability on the
issue of whether the article of contraband is
a controlled substance. If we were to reject
the States approach, we would follow the rule
of statutory construction codified in
AS 11.81.610(b)(2) the rule that the
culpable mental state of recklessly applies
to a defendants awareness of a circumstance
that makes the defendants conduct criminal.
In other words, we would be required to
interpret the first-degree promoting
contraband statute to require proof that
Lampkin acted recklessly with regard to the
possibility that the object of contraband in
his possession was, in fact, a controlled
substance.
This second possible interpretation
of the promoting contraband statute leads to
the same result (for Tuckfield purposes) as
the States suggested interpretation.
Recklessness is a lesser culpable mental
state than knowledge. Because of this, a
jury could rationally conclude that Lampkin
was guilty of promoting contraband because he
acted recklessly with respect to the
possibility that the object of contraband in
his possession was a controlled substance,
and yet, at the same time, the jury could
conclude that Lampkin was not guilty of the
drug possession charges because the State
failed to prove that Lampkin knew that the
objects of contraband in his possession were
the controlled substances named in the drug
possession counts of the indictment. Again,
because these verdicts would be logically
reconcilable, the offenses would not stand in
the relationship of greater offense and
lesser included offenses.
Thus, whether we were to adopt the
States proposed strict liability
interpretation of the first-degree promoting
contraband statute or, instead, we were to
adopt the recklessness interpretation of the
statute suggested by the rule of construction
codified in AS 11.81.610(b)(2), the result is
the same for Tuckfield purposes: even when
the article of contraband in question is a
controlled substance, the offense of
possessing that controlled substance (under
the pertinent provision of AS 11.71) is not a
lesser included offense of first-degree
promoting contraband under AS 11.56.375(a).
It is not enough for Lampkin to
argue that, given the evidence in his case,
one might reasonably expect the jury to find
him guilty of all three offenses. As this
Court noted in Comeau v. State when we
discussed the related issue of whether a
defendant is entitled to a jury instruction
on a proposed lesser included offense: When
the evidence used to prove the [purported]
greater offense would permit, but not
require, a finding of the elements necessary
to convict [the defendant] of the [purported]
lesser [included] offense, neither the
cognate theory nor the statutory elements
theory requires a lesser-offense instruction.
Comeau,758 P.2d 108, 121 (Alaska App. 1988).
In other words, even though the evidence at
the defendants trial may strongly suggest
that the defendant is guilty of both the
greater offense and the lesser, the lesser
offense is not included in the greater
offense unless the defendants guilt of the
lesser offense automatically follows from a
finding that the defendant is guilty of the
greater offense.
For these reasons, we conclude that
Lampkin was validly convicted and sentenced
for all three offenses. The judgements of
the superior court are AFFIRMED.
_______________________________
1AS 11.71.040(a)(3)(A) and AS 11.71.050(a)(3)(A),
respectively.
2AS 11.56.375(a)(3).
3See AS 11.56.375(b) and AS 11.71.040(d).
4See AS 11.71.140(b)(1)(N).
5Under Alaskas cognate approach to lesser included offenses,
the identification of potential lesser included
offenses hinges on the facts charged in the indictment
and the evidence presented at trial, rather than on the
statutory elements of the greater and lesser offenses.
State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985);
Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979).
A lesser offense is included within the charged offense
if, under the facts of the case, it would be impossible
for the defendant to commit the charged offense without
committing the lesser offense, and when conviction of
the greater offense requires the jury to find a
disputed fact that is not required for conviction of
the lesser. See Christie v. State, 580 P.2d 310, 317
(Alaska 1978); Sullivan v. State, 766 P.2d 51, 56
(Alaska App. 1988); Abdulbaqui v. State, 728 P.2d 1211,
1214 (Alaska App. 1986).
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