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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DANIEL M. HOEKZEMA, | ) |
| ) Court of Appeals No. A-9890 | |
| Appellant, | ) Trial Court No. 3PA-05-1024 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2185 September 26, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Gregory Heath, Judge.
Appearances: Doug Miller, Assistant Public
Advocate, and Joshua Fink and Rachel Levitt,
Public Advocates, Anchorage, for the
Appellant. Terisia Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Daniel M. Hoekzema appeals his conviction for fourth-
degree controlled substance misconduct (possession of at least
one ounce of marijuana with intent to deliver),1 and he also
appeals the sentence that he received for this crime.
Hoekzema contends that the evidence presented at his
trial was insufficient to support the conclusion that he
possessed one ounce or more of marijuana. He further contends
that even if the evidence of possession was sufficient, the
evidence was insufficient to support the conclusion that he
intended to distribute this marijuana. For the reasons explained
here, we conclude that the evidence was sufficient to establish
both of these elements.
With regard to his sentence, Hoekzema argues that the
superior court improperly treated him as a third felony offender
rather than a second felony offender for presumptive sentencing
purposes. For the reasons explained here, we direct the superior
court to reconsider this issue.
Hoekzema further argues that the superior court
committed error when the court rejected his two proposed
mitigating factors: AS 12.55.155(d)(8) (that his conduct was
among the least serious encompassed by the definition of the
offense), and AS 12.55.155(d)(13) (that his controlled substance
offense involved only small quantities). We uphold the superior
courts ruling with respect to mitigator (d)(8), but we reverse
the superior courts ruling with respect to mitigator (d)(13).
Under the facts of Hoekzemas case, the superior court should have
found this mitigator.
Underlying facts
For purposes of resolving Hoekzemas claim
that the evidence was insufficient to support his
conviction, we are obliged to view the evidence in the
light most favorable to sustaining the jurys verdict.2
We therefore recite the evidence in that light here.
A state trooper stopped Hoekzemas vehicle on
the Parks Highway because the vehicle had an inoperable
headlight and an expired registration. When Hoekzema
rolled down his car window, the trooper detected the
odor of fresh or green marijuana coming from inside the
car. The trooper then noticed a one-quart Ziploc bag
and one smaller sandwich bag on the floor of the car.
When the trooper asked Hoekzema if there was marijuana
in these bags, Hoekzema replied that there had been
marijuana in the bags, but they were now empty. When
Hoekzema held the bags up for the trooper to see, the
trooper observed remnants of marijuana in the bags.
Hoekzema consented to have the trooper search
his vehicle, and the trooper directed Hoekzema to stand
in front of the vehicle so he could see Hoekzema while
he searched the car.
While the trooper conducted the search of the
car, he noticed that Hoekzema was pacing in front of
the vehicle, and that Hoekzema also repeatedly put his
hands in and out of his jacket pockets in a manner
suggesting that he might be trying to throw something
to the ground. According to the trooper, Hoekzema
watched him like a hawk, and he seemed to be waiting
for an opportunity to do something when the trooper was
not watching.
To test this hypothesis, the trooper ducked
his head under the dashboard to see what Hoekzema would
do when he was out of sight. The trooper observed
Hoekzema turn his back, hunch up his shoulders, look
away, bring his hands together in front of him, and
make a quick motion. These actions led the trooper to
believe that Hoekzema had just thrown something to the
ground.
The trooper got out of the car and walked to
where Hoekzema had been standing. There, on the
ground, the trooper observed a quart-size Ziploc bag.
This quart-size bag contained twelve individually
wrapped cellophane baggies of marijuana, each baggie
containing an approximately equal amount (slightly over
2.5 grams). All told, the quart-size bag contained 31
grams of marijuana.
The trooper then searched Hoekzemas person
and found an orange-colored pill bottle containing
another 4.4 grams of marijuana. Hoekzema told the
trooper that this marijuana was [his] personal stash.
Based on these events, Hoekzema was charged
with possession of one ounce or more of marijuana with
intent to deliver. (One ounce equals 28.35 grams.)
Hoekzemas claim that the evidence is insufficient to
support his conviction
Hoekzema makes two separate claims regarding
the sufficiency of the evidence to support the jurys
verdict. First, he claims that the evidence is
insufficient to support a finding that he possessed the
marijuana found in the quart-size bag on the ground.
Second, he claims that even if the evidence is
sufficient to establish his possession of this
marijuana, the evidence is insufficient to support a
finding that he intended to distribute the marijuana.
When a defendant challenges the sufficiency
of the evidence to support the verdict, the test is
whether, viewing the evidence (and the inferences to be
drawn from that evidence) in the light most favorable
to upholding the verdict, fair-minded people could
conclude that the State had proved these elements.3
Here, the troopers observations of Hoekzemas
furtive movements, followed by the troopers discovery
of the quart-size bag (a bag filled with smaller
baggies of marijuana) in the place where Hoekzema had
been standing, are sufficient to support a reasonable
inference that Hoekzema knowingly possessed the bag and
the marijuana within the bag.
With regard to whether the evidence was
sufficient to establish that Hoekzema intended to sell
or otherwise distribute this marijuana, we note that
the marijuana in the quart-size bag was divided into
twelve smaller baggies, each containing an essentially
equal amount of marijuana. The State presented
evidence (in particular, the testimony of Houston
Police Chief John Rhyshek) that packaging of this sort
indicated that the smaller baggies of marijuana were
destined for sale. We further note that, when the
trooper searched Hoekzemas person and found a separate
container (an orange-colored pill bottle) with another
4.4 grams of marijuana, Hoekzema told the trooper that
this marijuana was his personal stash thus suggesting
that the marijuana in the quart-size bag was not for
personal use. All together, this evidence was
sufficient to support a reasonable conclusion that
Hoekzema intended to distribute the 31 grams of
marijuana found in the quart-size bag.
For these reasons, we conclude that the
evidence presented at Hoekzemas trial is sufficient to
support his conviction.
Whether Hoekzema should have been sentenced as a second
felony offender or a third felony offender
Hoekzemas offense, fourth-degree controlled
substance misconduct, is a class C felony.4 The
overall sentencing range for this class C felony is 0
to 5 years imprisonment. There is a presumptive
sentencing range of 2 to 4 years for second felony
offenders, and a presumptive range of 3 to 5 years for
third (or subsequent) felony offenders.5
Hoekzema had two prior felony convictions a
conviction for first-degree robbery and a conviction
for first-degree assault but both of these convictions
arose from the same criminal episode, and Hoekzema
received concurrent sentences for these two crimes.
Because of this, there is a question as to whether
Hoekzema should have been treated as a second felony
offender or a third felony offender for presumptive
sentencing purposes.
The calculation of a defendants number of
prior felony convictions is governed by AS 12.55.145.
Under subsection (1)(C) of that statute, if a defendant
has two or more felony convictions arising out of a
single, continuous criminal episode, and if there was
no substantial change in the nature of the criminal
objective during that episode, and if the defendant was
[not] sentenced to consecutive sentences for the
crimes, then these felony convictions are considered a
single [felony] conviction for the purpose of
determining whether the defendant is a second or a
third felony offender under the presumptive sentencing
laws.
Because Hoekzemas two prior felony
convictions arose from a single criminal episode, and
because he received concurrent sentences for these two
crimes, the only question remaining under AS
12.55.145(1)(C) is whether there was a substantial
change in the nature of the criminal objective during
the criminal episode. That issue was not litigated in
the superior court.
On appeal, the State asserts that if Hoekzema
believed that he should be treated as a second felony
offender rather than as a third felony offender, then
it was Hoekzemas burden to raise this issue and
litigate it. Normally, we might agree with the State.
But the facts of Hoekzemas case are a bit unusual.
Alaska Criminal Rule 32.1(a)(2)(A) declares
that if a defendant is convicted of a felony governed
by presumptive sentencing, [t]he state shall file a
notice [that] presumptive sentencing [applies] and
[shall list] the defendants prior convictions that
qualify as prior felony convictions under AS 12.45.145.
[Sic: The correct statute is AS 12.55.145.]
In Hoekzemas case, the State filed the
required notice, and this notice listed Hoekzemas two
prior felony convictions from a single court case (File
No. 3PA-92-1387 Cr), but the State did not explicitly
assert whether it believed that these two prior
convictions should be counted as separate convictions
or as a single conviction under AS 12.55.145.
Even though the States notice did not say
whether the State believed that Hoekzema should be
sentenced as a second or third felony offender, the
prosecutor had already implicitly announced the States
position on this matter by telling the superior court
that Hoekzema should be sentenced as a second felony
offender.
As explained above, Hoekzema faced a
presumptive sentencing range of 2 to 4 years if he was
a second felony offender, and a sentencing range of 3
to 5 years if he was a third felony offender. At the
end of Hoekzemas trial, after the jury found Hoekzema
guilty and the judge ordered preparation of a pre-
sentence report, the following colloquy occurred
between the trial attorneys and the trial judge,
Superior Court Judge pro tempore Gregory Heath. During
this colloquy, the prosecutor told the judge that even
though Hoekzema had two prior felony convictions, the
minimum presumptive term was 2 years, not 3 thus
implying that the prosecutor believed that Hoekzema
should be treated as a second felony offender:
The Court: This [will be] a presumptive
felony sentence?
Prosecutor: Yes, it [will be]. ...
His prior Ill get it for you. Assault and
burglary, I believe. [Sic: assault and
robbery] Hes got two previous felonies.
The Court: [Then] hes looking at a
presumptive three years on this case?
Defense Attorney: No, two years.
Prosecutor: Two [years] on each.6
. . .
The Court: So he has one prior felony
conviction?
Prosecutor: No, sir.
The Court: Two prior [convictions]?
Prosecutor: He has a 93 robbery and a
93 assault, which [was reduced from]
attempted murder ... .
The Court: And ... was that the same
case?
Defense Attorney: Yes.
The Court: Okay.
Prosecutor: Same cases. [sic]
The prosecutor repeated this same
view of matters at Hoekzemas sentencing
hearing. At the sentencing hearing, the
State proved one aggravating factor: AS
12.55.155(c)(7) that Hoekzemas prior felony
offenses (first-degree robbery and first-
degree assault, both class A felonies) were
of a more serious class of felony than his
current offense. During his sentencing
argument, the prosecutor told Judge Heath
that the sentencing range for Hoekzemas
current offense was 2 to 5 years
imprisonment. This comment makes sense only
if the prosecutor believed that Hoekzema
faced a presumptive range of 2 to 4 years
(the range prescribed for second felony
offenders), but that Judge Heath had the
authority to exceed this presumptive range
and impose a sentence up to the 5-year
maximum term because the State had proved the
aggravating factor.
During the defense attorneys
sentencing remarks, she too indicated that
Hoekzema faced sentencing as a second felony
offender. Although the defense attorney
never directly asserted that Hoekzema was a
second felony offender for presumptive
sentencing purposes, her sentencing
recommendation 2 years with 1 year suspended
appears to have been based on this premise.
Thus, from the remarks made at the
close of Hoekzemas trial and then later at
the sentencing hearing itself, it appears
that both the prosecutor and the defense
attorney held the belief that Hoekzema was a
second felony offender for presumptive
sentencing purposes in other words, that
Hoekzemas two prior felony convictions should
only be counted as one under the test laid
out in AS 12.55.145(1)(C).
But when Judge Heath announced his
sentencing decision, he declared that
Hoekzema was a third felony offender:
The Court: The Court is going to
decline to find ... [Hoekzemas proposed]
mitigators. I dont think the defendant has
proven [those] by a preponderance of the
evidence. However, Im not going to give any
weight to the [States] aggravator either. I
dont think it really warrants any weight.
[And] the presumptive part of the sentencing
takes [into account] the aggravator anyway.
Hes a third-time presumptive [sic], so the
presumptive sentencing range is 3 to 5 years.
So I really dont need the aggravator to
[impose] 5 years ... to serve but Im not
going to impose that amount [in any event].
Judge Heath then sentenced Hoekzema to 5
years with 2 suspended (i.e., 3 years to
serve).
Shortly after Judge Heath announced
this sentence, the prosecutor asked the judge
a series of questions which indicated that he
(i.e., the prosecutor) still believed that
Hoekzema was a second felony offender, not a
third felony offender. In these questions,
the prosecutor suggested that Hoekzema faced
a presumptive sentencing range of 2 to 4
years, and that Judge Heath needed to rely on
the aggravating factor if he was going to
impose a total of 5 years (even with 2 of
these years suspended):
Prosecutor: Your Honor, may I ask [for]
clarification [with regard to the marijuana
sentence]?
. . .
The Court: Its 5 years with 2
suspended, 3 to serve.
Prosecutor: Okay.
The Court: The presumptive 3.
Prosecutor: And my understanding is ...
that youre giving no weight to the
aggravator[] for purposes of time to serve,
but youre using the aggravator to get to the
5 years?
The Court: I dont think, legally,
[that] I have to [rely on the aggravator],
because the presumptive sentencing range is 3
to 5. ...
Prosecutor: Okay.
It is true, as the State points out
on appeal, that the defense attorney made no
objection (or any other comment) to Judge
Heaths last-quoted remark. This lack of
objection may be attributable to the fact
that the State had proved an aggravator.
Because of this aggravator, Judge Heath was
authorized to impose a sentence of 5 years
even if Hoekzema was a second felony offender
and the applicable presumptive range was 2 to
4 years. See AS 12.55.155(a)(1).
Nevertheless, the record provides
clear evidence that both the State and the
defense believed that Hoekzema should be
sentenced as a second felony offender rather
than as a third felony offender, and that
Judge Heath reached the opposite conclusion
without seeking the input of the parties and
without addressing the crucial factual issue
under AS 12.55.145(1)(C) i.e., the issue of
whether there was a substantial change in the
nature of the criminal objective during the
criminal episode that gave rise to Hoekzemas
two prior felony convictions.
As we explain in the next section
of this opinion, we must send Hoekzemas case
back to the superior court for re-sentencing
because the court erroneously rejected
Hoekzemas proposed mitigator of small
quantity. Since the superior court must
reconsider Hoekzemas sentence, we direct the
superior court to likewise reconsider whether
Hoekzema was a second felony offender or a
third felony offender for presumptive
sentencing purposes.
Hoekzemas proposed mitigators: conduct among the least
serious, and small quantity
As we noted earlier, Hoekzema proposed two
mitigating factors under AS 12.55.155(d): (d)(8)
that his conduct was among the least serious
within the definition of the offense; and (d)(13)
that his offense involved only small quantities of
a controlled substance.
With regard to mitigator (d)(8), Hoekzema
argued that his conduct was among the least
serious because he was wrongfully convicted.
Hoekzema contended that the marijuana in his
possession was not for sale or other distribution
that it was purely for his personal use. The jury
had already resolved this issue when it found
Hoekzema guilty of possession with intent to
deliver, and Hoekzema was not entitled to
relitigate this question of fact. Thus, Judge
Heath properly rejected this proposed mitigator.
We do, however, find that the superior court
committed error with respect to mitigator (d)(13),
the small quantities mitigator. Hoekzema argued
that his offense involved only a small quantity of
marijuana because the statute proscribed
possession of one ounce or more (i.e., 28.35 grams
or more), and Hoekzema possessed 35.4 grams in
other words, an amount only slightly above the
amount that triggered the statute.
Actually, when Hoekzemas attorney relied on
this figure of 35.4 grams, she understated Hoekzemas
position by overstating the amount of marijuana that
he possessed with intent to sell or deliver. As we
explained earlier in this opinion, Hoekzema had a total
of 31 grams of marijuana in the quart-size Ziploc bag
(divided into twelve smaller baggies), and another 4.4
grams in the pill bottle in his pocket. According to
the testimony, Hoekzema described the 4.4 grams as his
personal stash, and there was apparently no contrary
evidence. Thus, with respect to Hoekzemas possession
of marijuana with intent to deliver, it seems that the
amount involved was 31 grams, not 35.4 grams.
When the prosecutor responded to this
proposed mitigator, his sole argument was that Hoekzema
possessed more than the statutory minimum of 28.35
grams:
Prosecutor: [W]hen the statute says
[one] ounce, that[s] 28 [grams]. He was at
35 grams, and theres 28 grams to an ounce.
Hes way over. Hes way over.
. . .
It just flies in the face of common
sense to say that this is a small amount or a
small quantity. This is well over an ounce.
Hes got 35 grams. 28 is all I need. Ive got
an excess of [marijuana].
After hearing these competing
arguments, Judge Heath found that Hoekzema
had failed to prove mitigator (d)(13):
The Court: The Court is going to
decline to find ... [Hoekzemas proposed]
mitigators. I dont think the defendant has
proven [those] by a preponderance of the
evidence.
As can be seen, Judge Heath offered
no explanation for his ruling. We therefore
presume that the judge adopted the
prosecutors argument that the small quantity
mitigator does not apply to cases where the
defendant possesses more than the statutory
minimum amount of the controlled substance.
This approach is wrong.
To date, our most extensive
discussion of the small quantity mitigator
was in Knight v. State, 855 P.2d 1347 (Alaska
App. 1993). In Knight, we held that a small
quantity for purposes of mitigator (d)(13) is
a quantity that is uncharacteristically small
when compared to the broad middle ground of
conduct encompassed by the statute defining
the defendants offense. Id. at 1349.
We also suggested in Knight that
the determination of what is a small quantity
is primarily a question of fact rather than a
question of law and that, for this reason, a
sentencing judges decision on this issue
should normally be reviewed under the clearly
erroneous standard of review (the standard
that applies to findings of historical fact)
rather than the de novo standard of review
(the standard that applies to rulings of
law). Here is what we said in Knight:
Within any class of controlled
substance, what constitutes an unusually
small or large quantity may vary from case to
case, depending on variables such as the
precise nature of the substance and the form
in which it is possessed, the relative purity
of the substance, its commercial value at the
time of the offense, and the relative
availability or scarcity of the substance in
the community where the crime is committed.
Variations may also occur over time: what
amounted to a typical controlled substance
transaction ten years ago might be an
exceptional one today.
These variables do not lend themselves
to an inflexible rule of general application,
and they render it both undesirable and
wholly impractical to treat the question of
what constitutes a large or small quantity
for purposes of [aggravator] (c)(25) and
[mitigator (d)(13)] as an abstract question
of law. The question must instead be
resolved by the sentencing court as a factual
matter, based on the totality of the evidence
in the case and on the courts discretion, as
informed by the totality of its experience.
Knight, 855 P.2d at 1349-1350.
Although our subsequent decisions
have adhered to the fact-based approach laid
out in Knight, the Alaska Supreme Courts
decision in Michael v. State, 115 P.3d 517
(Alaska 2005), casts doubt on our assertion
in Knight that this issue is primarily one of
fact rather than law. In Michael, the
supreme court held that the decision as to
whether a defendants conduct is among the
least serious within the definition of an
offense (i.e., the decision as to whether
mitigator (d)(8) is proved) is a mixed
question of fact and law and that, once the
facts have been determined, the issue of
whether those facts constitute least serious
conduct is purely a question of law.
Michael, 115 P.3d at 519. The supreme court
declared that the answer to these questions
should not vary from case to case or judge to
judge. Id. at 520.
We need not decide whether, or to
what extent, the supreme courts decision in
Michael requires a re-examination of our
basic approach in Knight. Rather, we
conclude that even under the fact-based
approach set forth in Knight, the superior
courts ruling in Hoekzemas case regarding
mitigator (d)(13) was erroneous.
In Knight, the defendant was
convicted of violating AS 11.71.030(a)(1),
the statute proscribing the possession of any
amount of cocaine for purposes of delivery.7
Given the fact that this statute encompasses
a range of possession from trace amounts to
truckloads, it may have made sense for this
Court to defer to the experience of the trial
court on the issue of whether the amount of
cocaine in Knights possession thirty-one
slips with an aggregate weight of 10.5 grams8
was a small quantity within the world of
cocaine-dealing.
But the statute at issue in
Hoekzemas case is not so open-ended. That
statute proscribes the possession of one
ounce or more of marijuana for purposes of
delivery. Possession of less than one ounce
for purposes of delivery is a lower level of
offense.9
When the dividing line between a
more serious offense and a less serious
offense is defined in terms of quantity, the
assessment of the small quantity mitigator
must be based on that dividing line.
In State v. Parker, 147 P.3d 690
(Alaska 2006), the supreme court addressed
the related question of how to assess the
aggravating factor of conduct among the most
serious and the mitigating factor of conduct
among the least serious. The supreme court
noted that this aggravator and this mitigator
are most clearly defined when the underlying
criminal statute defines the offense in terms
of number or value. Id. at 695. The supreme
court cited the Commentary to the Alaska
Revised Criminal Code, Senate Journal Supp.
No. 47 (June 12, 1978), p. 161, where the
legislature suggested that a second-degree
theft of property valued at $24,999 should be
viewed as among the most serious, because the
value of the stolen property is only $1 short
of the threshold value for first-degree
theft, which is a class B felony. The
supreme court also cited the concurring
opinion of Judge Singleton in Braaten v.
State, 705 P.2d 1311, 1325 (Alaska App.
1985), where he suggested that when a
defendants conduct approaches a
lesser-included offense, this should normally
warrant a finding of the conduct among the
least serious mitigator. Parker, 147 P.3d at
695 n. 27.
We believe that an analogous
approach is required in Hoekzemas case. The
statutory dividing line between Hoekzemas
offense and the lesser misdemeanor offense is
defined in terms of quantity: possession of
marijuana for sale is a felony if the amount
possessed is one ounce or greater; it is a
misdemeanor if the amount possessed is less
than one ounce.
Above this one-ounce threshold, the
felony statute encompasses a large range of
marijuana possession from a minimum
possession of one ounce (28.35 grams) to an
indefinite maximum possession that includes
store rooms of marijuana. And we take
judicial notice that, among the marijuana
possession cases that have come to us on
appeal, we have seen many cases where the
amount of marijuana possessed for sale (or
apparently possessed for sale) far exceeded
the 31 grams that Hoekzema possessed.10
Even under the fact-based approach
of Knight, there have been cases where the
facts were so clear that we have overturned
trial court decisions rejecting the small
quantity mitigator. For instance, in
Dollison v. State, 5 P.3d 244, 248 (Alaska
App. 2000), we concluded that the sentencing
judge should have ruled that the defendants
possession of .05 grams of cocaine, with a
commercial value of $10.00, constituted a
small quantity.
We reach a similar conclusion in
Hoekzemas case. The smallest quantity of
marijuana covered by the felony statute is
28.35 grams and, according to the States
proof, Hoekzema had a total of 31 grams
packaged for sale. This 31 grams was divided
into twelve more or less equal portions.
Thus, if Hoekzema had possessed only eleven
of these individual baggies, the amount of
marijuana in his possession would have barely
exceeded the statutory floor of 28.35 grams;
and if he had possessed only ten of these
baggies, the total amount of marijuana would
have been below the statutory floor bringing
his offense down to a misdemeanor level.
As we have already explained, the
Alaska legislature has divided possession-of-
marijuana-for-sale offenses into two
categories. Those involving less than one
ounce are punished as misdemeanors under AS
11.71.050(a)(1), while those involving one
ounce or more are punished as felonies under
AS 11.71.040(a)(2). Hoekzemas offense
possession of 31 grams with intent to sell
was only slightly on the felony side of this
dividing line, and (according to the States
evidence) the total selling price of this
amount of marijuana was a relatively modest
$300.
We hold that, among the conduct
included within the felony possession of
marijuana for sale statute, Hoekzemas
possession of 31 grams was a small quantity.
We therefore reverse the superior courts
ruling on this issue.
Conclusion
We AFFIRM Hoekzemas conviction for possessing
marijuana with intent to deliver. However, we
REVERSE the superior courts decision on mitigator
(d)(13), and we further direct the superior court
to reconsider the issue of whether Hoekzema was
subject to sentencing as a second felony offender
or a third felony offender.
_______________________________
1 AS 11.71.040(a)(2).
2 Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
3 Eide, 168 P.3d at 500-01.
4 AS 11.71.040(d).
5 AS 12.55.125(e).
6 The State took Hoekzema to trial on two felony charges: the
fourth-degree controlled substance misconduct charge that is
the subject of this appeal, and a related charge of
tampering with evidence (for throwing the bag of marijuana
to the ground). The jury found Hoekzema guilty of both
charges. However, at Hoekzemas sentencing hearing, the
prosecutor conceded that the evidence tampering charge was
not legally supportable, and this conviction was vacated by
stipulation of the parties.
7855 P.2d at 1348.
8Id.
9See AS 11.71.050(a)(1).
10 See, e.g., State v. Smith, 182 P.3d 651, 652-53 (Alaska
App. 2008) (9.85 pounds); Garhart v. State, 147 P.3d
746, 747 (Alaska App. 2006) (4 pounds); Murray v.
State, 54 P.3d 821, 822 (Alaska App. 2002)
(approximately 6 ounces); Maness v. State, 49 P.3d
1128, 1133 (Alaska App. 2002) (approximately 3.7
pounds); Walker v. State, 991 P.2d 799, 801 (Alaska
App. 1999) (at least 8 ounces); Landon v. State, 941
P.2d 186, 193 (Alaska App. 1997) (6 or 7 pounds);
Fleener v. State, 686 P.2d 730, 735 (Alaska App. 1984)
(5 pounds).
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