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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BILLYJACK WIGLESWORTH,
Court of Appeals No. A-10462
Appellant, Trial Court No. 3PA-07-1322 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2300 - March 11, 2011
Appeal from the Superior Court, Third Judicial District, Palmer,
Vanessa White, Judge.
Appearances: David E. George, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
BillyJack Wiglesworth appeals his convictions for first-degree burglary and
six counts of second-degree controlled substance misconduct. He argues that the State
presented insufficient evidence at his trial to support the jury's finding that he committed
burglary. He also argues that he should not have received a separate conviction and
sentence for his act of burglary - that his burglary conviction should merge with his
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drug convictions. For the reasons explained in this opinion, we conclude that the
evidence was sufficient to support Wiglesworth's burglary conviction, and we further
conclude that, under Alaska law, Wiglesworth's crime of burglary is a separately
punishable offense, distinct from his drug offenses.
The more difficult issues in this appeal arise from Wiglesworth's claim that
all six of his second-degree controlled substance misconduct convictions should be
merged into a single conviction.
The statute defining the offense of second-degree controlled substance
misconduct, AS 11.71.020, prohibits several types of conduct. One subsection of the
statute prohibits the manufacturing of methamphetamine; see subsection (a)(2)(A).
Another subsection of the statute prohibits the manufacturing of the immediate precursor
chemicals that are created during the process of manufacturing methamphetamine; see
subsection (a)(2)(B). Yet another subsection of the statute prohibits the possession (as
opposed to the manufacturing) of these precursor chemicals if the possessor intends to
use them to create methamphetamine; see subsection (a)(3). 1
1 The general definition of "immediate precursor" is found in AS 11.71.900(12):
"immediate precursor" means a substance which is by statute or regulation designated
as the principal compound commonly used or produced primarily for use, and which is
an immediate chemical intermediary used or likely to be used in the manufacture of a
controlled substance, the control of which is necessary to prevent, curtail, or limit
manufacture of that controlled substance[.]
In addition, AS 11.71.150(f) lists specific precursors of methamphetamine:
(f) [Controlled Substance] Schedule IIA includes, unless specifically excepted or unless
listed in another schedule, any material, mixture, or preparation which contains any quantity
of the following substances:
(1) immediate precursor to amphetamine and methamphetamine: phenylacetone also
(continued...)
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In addition to these prohibitions on methamphetamine and its immediate
chemical precursors, the statute also prohibits the possession of over two dozen "listed
chemicals" - in general, chemical substances that are the raw materials used in
manufacturing methamphetamine - if the possessor intends to use these listed chemicals
to manufacture methamphetamine or any of its immediate chemical precursors; see
subsection (a)(4). (The list of these chemicals is found in AS 11.71.200.)
Wiglesworth was convicted of six separate counts of second-degree
controlled substance misconduct, based on various subsections of the statute.
One of Wiglesworth's counts was for possessing iodine (one of the listed
chemicals) on May 22, 2007 at a beach on the Little Susitna River.
Wiglesworth was convicted of two additional counts, one for possessing
iodine and one for possessing acetone (another of the listed chemicals) in a vehicle that
was stopped by the police on May 27, 2007.
Wiglesworth was convicted of yet another count of controlled substance
misconduct for possessing iodine and red phosphorus (another of the listed chemicals)
at a cabin near Willow on June 4, 2007. (Unlike Wiglesworth's two separate counts for
possessing iodine and acetone on May 27th, the State did not pursue the June 4th
possession of iodine and red phosphorus in separate counts.)
Finally, Wiglesworth was convicted of two more counts of controlled
substance misconduct for possessing two different immediate precursor chemicals
(amphetamine and pseudoephedrine) at the same cabin on the same date, June 4th.
Wiglesworth argues that he is guilty of essentially one continuing attempt
to manufacture methamphetamine, and that his possession of the various listed chemicals
and the two methamphetamine precursor chemicals simply reflects a single, ongoing
1 (...continued)
known as phenyl-2-propanone; P2P; benzyl methyl ketone; [and] methyl benzyl ketone[.]
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criminal effort. For this reason, Wiglesworth contends that he should be convicted and
sentenced for only one merged count of second-degree controlled substance misconduct
(based on the jury's guilty verdicts on the six counts).
The State responds that Wiglesworth was properly convicted of a separate
count for each individual listed chemical and for each individual precursor chemical.
The State also argues that Wiglesworth could properly be convicted of three separate
crimes for possessing the same listed chemical - iodine - because Wiglesworth's
possession of iodine occurred on three separate dates and locations.
For the reasons explained in this opinion, we conclude that a person
engaged in a single act of manufacturing methamphetamine is guilty of only one count
of second-degree controlled substance misconduct, even though the defendant might, in
the process, manufacture or possess two or more immediate precursor chemicals, or
might possess two or more listed chemicals. We further conclude that a defendant's
continuing possession of precursor chemicals, or the defendant's continuing possession
of a supply of "listed" chemicals, constitutes only one offense, even though the State
presents evidence that the defendant possessed those same chemicals at different times
and/or different places.
Finally, we conclude that if the State believes that the facts of a particular
case justify the entry of two or more separate convictions (under the rules stated in the
preceding paragraph), the State must prove the facts supporting the separate convictions
to the jury beyond a reasonable doubt.
Underlying facts
Wiglesworth, along with three confederates (Jess Klein, Karri Embach, and
Anafesa Galaktionoff), engaged in the manufacture of methamphetamine using the
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"ephedrine reduction" method (commonly known as the "REI" method). This method
involves the use of several chemicals, including iodine, red phosphorus and ephedrine.
Under this method, pseudoephedrine (a methamphetamine precursor
chemical contained in various cold medications) is extracted from the cold medications.
Two of the "listed" chemicals - red phosphorus and hydriodic acid (an aqueous solution
of hydrogen iodide) - are then used to chemically alter the pseudoephedrine into
methamphetamine.
Of the four defendants in this case, only Wiglesworth knew how to make
methamphetamine, and he directed the manufacturing operation.
On or about May 20, 2007, Wiglesworth and his confederates made a trip
to Anchorage to buy the supplies needed to manufacture methamphetamine. The next
day, the group went to a beach of the Little Susitna River near Houston. At the beach,
Klein, Embach, and Galaktionoff set to work extracting red phosphorus from
matchbooks, while Wiglesworth readied the iodine. However, while Wiglesworth and
his friends were engaged in these efforts, a man drove up in a truck and announced that
he was about to close the gate that controlled road access to the beach. The group
packed up their materials. Then, before leaving the beach, they set fire to the trash from
their manufacturing operation.
On May 22nd, police officers (acting on a tip from a Houston resident)
went to the Little Susitna River to investigate the debris at the beach. This debris
included discarded matchbook covers and bottles of iodine tincture. The officers
concluded that this debris was the trash from a methamphetamine manufacturing
operation. Also among the debris was a receipt with the name "Jess Klein".
In the meantime, Wiglesworth and his friends decided to continue their
methamphetamine manufacturing efforts at a cabin near Willow; Karri Embach knew
about this cabin because it was owned by her ex-boyfriend's father. Wiglesworth and
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his three friends stayed at the cabin for several days. During this time, they both
manufactured and ingested methamphetamine.
At Wiglesworth's trial, Jess Klein testified that, at some point during these
several days, the group left the cabin to buy more supplies and to drop off Galaktionoff,
who wanted to go elsewhere. The remaining three people - Wiglesworth, Embach, and
Klein - returned to the cabin and continued making methamphetamine.
The group left the cabin again on May 27th, traveling in Klein's Toyota
Land Cruiser. While they were riding in the Land Cruiser, they were stopped by the
Wasilla police. The police officers observed items in the car that appeared to be related
to the manufacture of methamphetamine, including various listed chemicals and
methamphetamine residue. The police impounded the vehicle, but they let Wiglesworth,
Embach, and Klein leave. The police recovered methamphetamine, the precursor
chemicals of amphetamine and pseudoephedrine, and the listed chemicals iodine and
acetone from the Land Cruiser.
On June 3, 2007, Wiglesworth, Embach, and Klein met again, this time
joined by Wiglesworth's friend, Shannon Lovell. Wiglesworth apparently wanted to go
back to the cabin and try to clean up the mess caused by their methamphetamine
manufacturing activities.
On June 4, 2007, Wiglesworth, Embach, Klein, and Lovell were riding in
Lovell's Chevy pickup truck when they were stopped by the Houston police. Again,
police observed methamphetamine-related items in the truck, and they impounded the
truck. This time, however, the police arrested Wiglesworth and the other occupants.
Following this arrest, Lovell told the police about the cabin near Willow
where Wiglesworth had been manufacturing methamphetamine. Lovell led the police
to the cabin, and the police then obtained a warrant to search the premises. This search
revealed bottles of iodine tincture, evidence of red phosphorus and pseudoephedrine, and
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other supplies and equipment used to manufacture methamphetamine. Various items
from the cabin tested positive for methamphetamine, amphetamine, psuedoephedrine,
iodine, and phosphorus.
Based on these events, Wiglesworth was convicted of burglarizing the
cabin, and he was also convicted of six counts of second-degree controlled substance
misconduct.
One of the drug counts was based on the iodine found among the debris on
the beach on May 22nd. Two of the drug counts were based on the iodine and acetone
found in the Land Cruiser on May 27, 2007. A fourth drug count was based on the
combination of iodine and red phosphorus found at the cabin on June 4, 2007. And the
fifth and sixth drug counts were based on the amphetamine and pseudoephedrine found
at the cabin.
Wiglesworth's claim that the evidence presented at his trial is insufficient
to support his burglary conviction
Wiglesworth contends that the evidence presented at his trial is insufficient
to support the jury's verdict finding him guilty of burglarizing the cabin. When a
defendant claims that the evidence is insufficient to support a criminal conviction, we
must view the evidence (and all reasonable inferences to be drawn from that evidence)
in the light most favorable to upholding the verdict. 2
Viewing the evidence in that light, the evidence shows that Karri Embach
(Wiglesworth's confederate) told Wiglesworth about the cabin and suggested that it was
a potential site for their methamphetamine lab. The cabin was owned by Marshal
Johnson, the father of a man whom Embach had previously dated. However, Embach
2 See, e.g., Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009).
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----------------------- Page 8-----------------------
had broken up with Johnson's son several months before, and she had not been to the
cabin for several months.
Embach stated that she rationalized their use of the cabin because she had
lived there before. However, neither Embach nor any of the other defendants actually
had permission to use the cabin; Embach admitted as much at Wiglesworth's trial.
Embach further testified that she never told Wiglesworth that she had permission to use
the cabin. Rather, she told him, "nobody's going to ever think to look for us there."
There was a sign outside the cabin with the name "Johnson". The hasp and
lock assembly had been pried off the cabin door. Although Embach stated that someone
else had broken the lock, and that the cabin was already open when she and Wiglesworth
arrived, the jury was not obliged to credit that testimony.
All of this evidence, viewed in the light most favorable to the jury's verdict,
is sufficient to convince reasonable jurors, beyond a reasonable doubt, that Wiglesworth
burglarized the cabin (i.e., that he and his friends broke into the cabin, intending to
commit a crime within it). Therefore, the evidence is sufficient to support Wiglesworth's
burglary conviction.
Whether Wiglesworth should have received a separate conviction for
burglary
Wiglesworth argues that even if the evidence supports the conclusion that
he burglarized the cabin, he should not have received a separate conviction and sentence
for burglary. Wiglesworth points out that, according to the evidence, he broke into the
cabin for the purpose of manufacturing methamphetamine, and Wiglesworth further
points out that he was convicted and sentenced for several methamphetamine-related
offenses (i.e., the six counts of second-degree controlled substance misconduct). Based
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----------------------- Page 9-----------------------
on this, Wiglesworth contends that it is improper to give him a separate conviction and
sentence for burglary.
Both the Alaska Supreme Court and this Court have addressed the question
of whether a defendant can properly receive separate convictions and sentences for both
an act of burglary and the ulterior crime(s) that motivated the burglary. The answer
under Alaska law is yes - separate convictions and sentences are proper. See Mead v.
State, 489 P.2d 738, 741-42 (Alaska 1971); Young v. State, 848 P.2d 267, 272 (Alaska
App. 1993); Reynolds v. State, 706 P.2d 708, 711 (Alaska App. 1985).
Accordingly, we uphold Wiglesworth's separate conviction and sentence
for burglary.
We turn now to the more difficult questions that are raised by
Wiglesworth's argument that he should not have received six separate convictions and
sentences for second-degree controlled substance misconduct.
Why we conclude that the possession of two or more methamphetamine
precursor chemicals and/or "listed" chemicals will support only one
conviction for second-degree controlled substance misconduct if the
defendant possesses these chemicals in connection with a single
methamphetamine manufacturing operation
To resolve Wiglesworth's appeal, we must decide whether the second-
degree controlled substance misconduct statute was intended to authorize separate
convictions and sentences for each separate precursor chemical and each separate
"listed" chemical that the police find at a single methamphetamine manufacturing
operation - or whether, instead, a defendant's possession of various precursor
chemicals and "listed" chemicals during the course of a single, continuing effort to
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manufacture methamphetamine should be viewed as only one offense for purposes of
conviction and punishment.
In State v. Dunlop, 721 P.2d 604 (Alaska 1986), the Alaska Supreme Court
addressed the question of whether a defendant who violates a statute two or more times
during a single criminal episode should receive multiple convictions and punishments,
or only one. The supreme court suggested that the answer often lies in deciding whether
the offense focuses on the culpable mental state with which the defendant acted or,
instead, whether the offense focuses on the consequences of the defendant's conduct.
Id., 721 P.2d at 608-09.
For offenses involving assaultive conduct, Alaska law often focuses on the
consequences of the defendant's conduct - meaning that the defendant can properly
receive separate convictions and sentences for each person killed, injured, or placed in
fear of injury by the defendant's assaultive act. See Dunlop, 721 P.2d at 609-610;
Cooper v. State, 595 P.2d 648, 650 (Alaska 1979) (upholding separate assault
convictions when a defendant's threatening conduct with a weapon placed three people
in fear of imminent serious injury).
Similarly, in Knutsen v. State, 101 P.3d 1065, 1071 (Alaska App. 2004),
this Court upheld eight separate convictions for indecent photography when the
defendant secretly videotaped the activities in a women's dressing room - and, in doing
so, violated the privacy of eight individuals.
On the other hand, for offenses involving theft, Alaska follows the "single
larceny" doctrine - the rule that the defendant's act of taking property belonging to
different owners at the same time and place generally constitutes only a single crime of
theft, even though this act of theft affects two or more victims. Nelson v. State, 628 P.2d
884, 896-97 (Alaska 1981); Martin v. State, 797 P.2d 1209, 1218 (Alaska App. 1990).
In other words, theft offenses generally focus on the fact that the defendant has engaged
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in an episode of stealing, rather than on the number of people who are deprived of their
property as a result of this episode.
Our task in the present case is to identify the gravamen or focus of
subsections (2) through (6) of AS 11.71.020(a) - the provisions of the statute dealing
with methamphetamine and the chemicals that are either used or created during the
process of manufacturing methamphetamine.
The text of these portions of the statute is quite lengthy, so we are placing
that text in a footnote rather than in the main text of our opinion. 3 However, we
3 Here are the pertinent provisions of AS 11.71.020:
(a) Except as authorized in AS 17.30, a person commits the crime of misconduct
involving a controlled substance in the second degree if the person
. . .
(2) manufactures any material, compound, mixture, or preparation that contains
(A) methamphetamine, or its salts, isomers, or salts of isomers; or
(B) an immediate precursor of methamphetamine, or its salts, isomers, or salts of
isomers;
(3) possesses an immediate precursor of methamphetamine, or the salts, isomers, or
salts of isomers of the immediate precursor of methamphetamine, with the intent to
manufacture any material, compound, mixture, or preparation that contains
methamphetamine, or its salts, isomers, or salts of isomers;
(4) possesses a listed chemical with intent to manufacture any material, compound,
mixture, or preparation that contains
(A) methamphetamine, or its salts, isomers, or salts of isomers; or
(B) an immediate precursor of methamphetamine, or its salts, isomers, or salts of
isomer;
(5) possesses methamphetamine in an organic solution with intent to extract from it
methamphetamine or its salts, isomers, or salts of isomers; or
(6) under circumstances not proscribed under AS 11.71.010(a)(2), delivers
(A) an immediate precursor of methamphetamine, or the salts, isomers, or salts of
isomers of the immediate precursor of methamphetamine, to another person with
reckless disregard that the precursor will be used to manufacture any material,
(continued...)
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3 (...continued)
compound, mixture, or preparation that contains methamphetamine, or its salts,
isomers, or salts of isomers; or
(B) a listed chemical to another person with reckless disregard that the listed
chemical will be used to manufacture any material, compound, mixture, or preparation
that contains
(i) methamphetamine, or its salts, isomers, or salts of isomers;
(ii) an immediate precursor of methamphetamine, or its salts, isomers, or salts
of isomers; or
(iii) methamphetamine or its salts, isomers, or salts of isomers in an organic
solution.
. . .
(c) In this section, "listed chemical" means a chemical described under AS 11.71.200.
And here is the text of AS 11.71.200, "Listed chemicals":
Listed chemicals are chemicals that are used in manufacturing a controlled substance in
violation of this chapter. Listed chemicals include
(1) anthranilic acid, its esters, and its salts;
(2) benzaldehyde;
(3) benzyl cyanide;
(4) ephedrine, its salts, optical isomers, and salts of optical isomers;
(5) ergonovine and its salts;
(6) ergotamine and its salts;
(7) N-acetylanthranilic acid, its esters, and its salts;
(8) nitroethane;
(9) norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;
(10) phenylacetic acid, its esters, and its salts;
(11) phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;
(12) piperidine and its salts;
(13) pseudoephedrine, its salts, optical isomers, and salts of optical isomers;
(14) 3,4-methylenedioxyphenyl-2-propanone;
(15) any salt, optical isomer, or salt of an optical isomer of the following chemicals:
(A) ethylamine;
(continued...)
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conclude that this text is important, because it illuminates the legislative purpose behind
the statute.
As we have already explained, the pertinent portions of the statute make it
a crime to manufacture methamphetamine, but they also make it a crime to manufacture
a chemical precursor of methamphetamine, or to possess one of these chemical
precursors with the intent to manufacture methamphetamine. In addition, these portions
of the statute make it a crime for a person to possess a "listed chemical" (the various
chemicals that are the "raw materials" used in the process of manufacturing
3 (...continued)
(B) hydriodic acid;
(C) isosafrole;
(D) methylamine;
(E) N-methylephedrine;
(F) N-methylpseudoephedrine;
(G) piperonal;
(H) propionic anhydride;
(I) safrole;
(16) acetic anhydride;
(17) acetone;
(18) anhydrous ammonia;
(19) benzyl chloride;
(20) ethyl ether;
(21) hydriotic acid;
(22) hydrochloric gas;
(23) hydrophosphoric acid;
(24) iodine and crystal iodine;
(25) lithium metal;
(26) potassium permanganate;
(27) red phosphorous;
(28) toluene;
(29) 2-butanone (or methyl ethyl ketone).
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methamphetamine) if the person intends to use the listed chemical to manufacture
methamphetamine or one of the precursor chemicals.
Taken together, the apparent purpose of these statutory provisions is to
define the offense in such a way that it encompasses various acts which otherwise would
be punishable only as an attempt to manufacture methamphetamine (i.e., conduct that
would otherwise be punishable as a lower degree of offense; see AS 11.31.100(d)), and
so that the offense encompasses certain additional types of conduct which might
otherwise not be punishable at all - conduct that might otherwise be viewed as merely
preparation for an attempt to manufacture methamphetamine.
In other words, the apparent intent of the statute is to allow the government
to arrest and prosecute methamphetamine manufacturers during the early stages of the
manufacturing process, and to prosecute these offenders for a completed crime rather
than an attempt.
This interpretation of the statute is borne out by the minutes of the House
Judiciary Committee from February 1999, when the Committee was considering House
Bill 3 (21st Legislature) - the proposal to reclassify the crime of manufacturing
methamphetamine from third-degree controlled substance misconduct to second-degree
controlled substance misconduct. During the Judiciary Committee's meeting of February
17, 1999, the sponsor of House Bill 3 (Representative Tom Brice) told the Committee:
Currently, state statutes prohibit law enforcement from
arresting people [who are] making methamphetamines until
they are actually producing [the] drug. The chemicals
involved [in this process] are dangerous, as is the production
process [itself]. [House Bill 3] will criminalize the
possession of certain chemicals used in manufacturing
methamphetamines, giving law enforcement the ability to be
proactive when fighting methamphetamine production in
Alaska.
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Representative Brice added that employees of the Department of Public Safety (that is,
state troopers) asked him to introduce this bill because they were unable to make an
arrest until the people running a methamphetamine lab actually started "cooking" the
drug. Ibid.
The discussion that followed Representative Brice's remarks further
highlighted the fact that, by criminalizing the possession of precursor chemicals and
listed chemicals, the legislature was trying to authorize law enforcement officials to
intervene when the methamphetamine manufacturing process was still in the attempt
stage. A major topic of the discussion was whether the legislature should adopt a list of
proscribed chemicals at all. Several legislators and witnesses thought that codifying a
list of chemicals might be too restrictive, and they discussed alternative ways in which
the legislature might criminalize "the attempt". See Minutes of the House Judiciary
Committee for February 17, 1999, at Log Nos. 1150 and 1566.
Other committee members questioned the fact that House Bill 3 made the
possession of precursor chemicals and listed chemicals the same degree of offense as the
completed manufacturing of methamphetamine. Some legislators remarked that they
found it unusual for an attempt to be punished as severely as the completed crime. Id.
at Log Nos. 0661 and 1272.
Overall, the Judiciary Committee's discussion of House Bill 3 (which was
ultimately enacted as SLA 2000, ch. 73) shows that the committee members viewed the
amendments to AS 11.71.020 as comprising a type of attempt statute - even though the
degree of offense and the prescribed penalty range would be the same for both the
attempt to manufacture methamphetamine and the completed crime.
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----------------------- Page 16-----------------------
(Compare AS 11.41.510(a), which defines the crime of second-degree
robbery as either the forcible taking of property or the attempted forcible taking of
property.)
Because this is the underlying purpose of the statute, the gravamen of the
offense is the defendant's act of assembling the necessary raw materials, and/or the act
of assembling or manufacturing the precursor chemicals, for the ultimate purpose of
manufacturing methamphetamine. The legislature did not perceive a separate,
independent societal interest in the defendant's possession of each separate chemical, or
in the defendant's accomplishment of each separate stage in the manufacturing process.
Rather, the societal interest at stake is to prevent the illicit manufacturing of
methamphetamine.
To put the matter in a slightly different way: if a defendant's possession
of each individual precursor chemical and listed chemical constituted a separately
punishable violation of the statute, then a defendant who completed the manufacturing
process (and who used up the precursor chemicals and listed chemicals in this process)
would be guilty of only one class A felony (for manufacturing methamphetamine), while
another defendant who was intercepted in the middle of the manufacturing process -
and who never actually manufactured any methamphetamine - might be guilty of up
to a dozen or more class A felonies, depending on how many precursor chemicals and
listed chemicals the police found at the manufacturing site. This result appears to be
illogical and unsupported by any social policy.
Accordingly, we conclude that a defendant who violates two or more
provisions of AS 11.71.020(a)(2) - (6) during the course of a single, continuing effort
to manufacture methamphetamine is guilty of only one act of second-degree controlled
substance misconduct for purposes of conviction and punishment.
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----------------------- Page 17-----------------------
We do not intend to restrict the State's ability to charge the defendant with
different counts based on different theories of how the defendant's conduct violated the
statute. That is, the State may (if it wishes) charge a separate count based on each
precursor chemical or listed chemical found in the defendant's possession. But even if
the jury finds the defendant guilty of all these different counts, the jury's verdicts must
be merged into a single conviction and sentence for second-degree controlled substance
misconduct.
The potential significance of the fact that a defendant possesses precursor
chemicals and/or listed chemicals at different times and places
We next address the question of whether the "single conviction and
sentence" rule should apply in cases where the defendant possesses precursor chemicals
and/or listed chemicals at different times in the same location, or in different locations
at the same time, or - as in Wiglesworth's case - in different locations at different
times.
Our basic approach to this question is governed by two principles. The first
of these principles is the conclusion we reached in the preceding section of this opinion:
subsections (2) through (6) of AS 11.71.020(a) define a species of attempt. If a
defendant's conduct comprises a single attempt, then the offense should remain a single
offense even though the defendant's possession of various chemicals might occur at
different times or in different places.
The second of these principles is that "possession" is a continuing course
of conduct, not a series of discrete acts - and, thus, when an offense is defined in terms
of the defendant's possession of an article or substance, courts normally construe the
defendant's continuing possession of the article or substance as a single offense, even
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----------------------- Page 18-----------------------
though the defendant may possess that article or substance at different locations at
different times.
We applied this principle in Simmons v. State, 899 P.2d 931 (Alaska App.
1995). The defendant in Simmons was convicted of two counts of being a felon in
possession of a concealable firearm (a pistol). The evidence showed that Simmons
received the pistol in the mail in mid-April 1990, and that shortly thereafter he took the
pistol to a shooting range and fired it. Three months later, in July, the police executed
a search warrant for Simmons's house; they found the pistol and seized it. Simmons was
charged with two separate offenses: one for possessing the pistol in April, and the other
for possessing the pistol in July. 4
On appeal, Simmons argued that he could not lawfully be convicted of two
separate offenses for his continuing possession of the pistol. We agreed. Id., 899 P.2d
at 935-37.
We noted that "the element of possession implies continuity" - that
possession is "a course of conduct, not an act". 5 We further noted the "well settled"
doctrine that when a continuing course of conduct is statutorily defined as one offense,
"[this] single crime cannot properly be charged as multiple crimes occurring at [discrete]
moments in time" - that prosecutors can not circumvent the double jeopardy clause by
"dividing a single crime into a series of temporal or spatial units". Simmons, 899 P.2d
at 936, quoting Brown v. Ohio, 432 U.S. 161, 169; 97 S.Ct. 2221, 2227; 53 L.Ed.2d 187
(1977).
For these reasons, we held that a defendant can not be convicted of multiple
counts alleging possession of the same weapon unless the State proves, beyond a
4 Simmons, 899 P.2d at 933-34.
5 Id. at 936.
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----------------------- Page 19-----------------------
reasonable doubt, that the defendant's possession of this weapon was not continuous -
in other words, that the defendant actually engaged in two discrete possessions.
Simmons, 899 P.2d at 936.
In Simmons, there was some evidence suggesting that the defendant had
engaged in two separate possessions - that he sold the weapon to another man, and then
later took possession of it again. Id. at 936-37. Nevertheless, we held that Simmons
could lawfully be convicted of only one count - because "the jury was never required
to consider or decide [this] issue":
Because the [jury] instructions did not apprise the jury [that,
to justify two separate convictions, the State needed to prove]
that Simmons' possession of the [pistol] had been interrupted
at some point between the first alleged offense and the
second, the jury's verdicts left the issue unresolved. At this
juncture, any ambiguity must be resolved in favor of the
accused. [Citation omitted] Accordingly, we conclude that
Simmons' two convictions must merge.
Simmons, 899 P.2d at 937.
See also Stewart v. Commonwealth, 306 S.W.3d 502, 506 (Ky. 2010)
(holding that continued possession of contraband is a single course of conduct that gives
rise to a only single offense); Fulcher v. Commonwealth, 149 S.W.3d 363, 376 (Ky.
2004) (approving other jurisdictions' conclusion that "uninterrupted possession of the
same contraband over a period of time is but one offense constituting a continuing course
of conduct, precluding convictions of multiple offenses for possession of the same
contraband on different dates"); State v. Kamaka, 277 S.W.3d 807, 811-12 (Mo. App.
2009) (holding that the defendant's possession of the same computer file of child
pornography on two different dates constituted a single offense).
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And see State v. Farr, 7 A.3d 1276, 1281-82 (N.H. 2010) (discussing
appellate decisions from around the country on the issue of when separate convictions
for possession are legally justified).
As we noted earlier, three of Wiglesworth's convictions were based on his
possession of iodine (a "listed" chemical) at different locations on different dates. But
if these three counts were based on the same supply of iodine that Wiglesworth
purchased or procured in furtherance of a single methamphetamine manufacturing
operation, then - under the legal principles we have just summarized - Wiglesworth
could only be convicted of one act of possession.
As was true in the Simmons case, there is some evidence in Wiglesworth's
case tending to show that he may have engaged in discrete possessions of iodine. As we
explained toward the beginning of this opinion, Wiglesworth was found guilty of
possessing iodine on May 22, 2007 at the beach on the Little Susitna River. He was also
found guilty of possessing iodine (as well as acetone) in a vehicle five days later, on May
27th. And Wiglesworth was found guilty of a third count of possessing iodine (as well
as red phosphorus) at the cabin near Willow on June 4th.
The police seized the iodine and acetone they found in Wiglesworth's
vehicle on May 27th. Thus, it is possible that Wiglesworth was forced to purchase more
iodine sometime between May 27th and June 4th, when the police found iodine in the
cabin. If that was the case, then one could argue that Wiglesworth's possession of iodine
on June 4th constituted a separate act from his possession of iodine on May 27th. On the
other hand, it is also possible that both the iodine found in the vehicle and the iodine
found later in the cabin came from the same, larger supply - that each cache of iodine
was only a different manifestation of the same act of possession.
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This issue went unlitigated and unresolved at Wiglesworth's trial.
Therefore, under our decision in Simmons, the ambiguity must be resolved against the
government and in Wiglesworth's favor.
In the same vein, Wiglesworth's activity at the beach on the Little Susitna
River and his later activity at the cabin near Willow may have been separate, discrete
attempts to manufacture methamphetamine. On the other hand, these activities may have
constituted one continuing (albeit interrupted) attempt to manufacture methamphetamine
- with an early stage (the effort to synthesize hydriodic acid from red phosphorus and
iodine) taking place at the beach, and a later stage (the effort to create the completed
methamphetamine) taking place at the cabin. Again, this issue went unlitigated and
unresolved at Wiglesworth's trial - and, thus, the ambiguity must be resolved against
the government and in Wiglesworth's favor.
There are, perhaps, other theories under which Wiglesworth might be guilty
of separately punishable acts of "possession" for purposes of AS 11.71.020. But as we
have explained, the facts justifying separate convictions would have to be expressly
pleaded by the State and found by the jury. When the facts (as found by the jury) are
ambiguous as to whether a defendant has committed one offense or two, the defendant
should receive only a single conviction and sentence. 6 Accordingly, any arguments
concerning how the facts of Wiglesworth's case might justify separate convictions for
second-degree controlled substance misconduct are moot.
6 See Cronce v. State, 216 P.3d 568, 570 (Alaska App. 2009); Atkinson v. State , 869
P.2d 486, 495 (Alaska App. 1994); Horton v. State, 758 P.2d 628, 632 (Alaska App. 1988)
(noting that the State has the burden of proving each offense beyond a reasonable doubt); see
also Mill v. State, 585 P.2d 546, 552 n. 4 (Alaska 1978) ("In marginal cases[,] doubts should
be resolved against turning a single transaction into multiple offenses").
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Conclusion
We conclude that the evidence presented at Wiglesworth's trial supports
his conviction for burglary, and we further conclude that Wiglesworth could properly be
convicted separately of both this act of burglary and the controlled substance misconduct
that was the ulterior motive for the burglary. However, we conclude that the six jury
verdicts finding Wiglesworth guilty of second-degree controlled substance misconduct
must be merged into a single conviction and sentence.
We therefore remand this case to the superior court so that the judgement
against Wiglesworth can be amended to reflect one conviction for controlled substance
misconduct, and so that the superior court can re-sentence Wiglesworth. See Allain v.
State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
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