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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SVEN ROFKAR,
Court of Appeals No. A-10383
Appellant, Trial Court No. 3PA-06-754 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2393 - July 5, 2013
Appeal from the Superior Court, Third Judicial District, Palmer,
Kari Kristiansen, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, and
Richard Allen, Alaska Public Advocate, Anchorage, for the
Appellant. Ann B. Black, Assistant Attorney General, Office of
Special Prosecutions and Appeals, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
Senior Judge.*
Senior Judge COATS.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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Sven Rofkar was found guilty of four counts of misconduct involving a
controlled substance in the fourth degree.1 Three of these counts charged that Rofkar
possessed or manufactured marijuana.2 The superior court merged these jury verdicts
into a single conviction. But the court did not merge the fourth count, which charged
Rofkar with maintaining a building for keeping or distributing controlled substances.3
Rofkar argues that Alaska's Double Jeopardy Clause requires that his
conviction for maintaining a building for keeping or distributing controlled substances
must merge with his other conviction. As we explain in this decision, we now hold that
Rofkar's conviction for maintaining a building for keeping or distributing controlled
substances must merge with his conviction for possessing and manufacturing marijuana.
Why we conclude that Rofkar's conviction for maintaining a building for
keeping or distributing controlled substances should merge with his
merged conviction for possessing or manufacturing marijuana
Our discussion of this issue starts with the leading case of Whitton v. State,
479 P.2d 302 (Alaska 1970). In Whitton, the defendant was convicted of robbery and
of the separate crime of using a firearm during the commission of a robbery (the same
robbery).4 The Alaska Supreme Court held that these convictions were for the "same
offense", and that they should merge.5
1 AS 11.71.040.
2 AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F); and AS 11.71.040(a)(3)(G).
3 AS 11.71.040(a)(5).
4 Whitton, 479 P.2d at 303-04.
5 Id. at 314.
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The supreme court declared that this double jeopardy question should be
resolved "by focusing upon the quality of the differences, if any exist, between the
separate statutory offenses, as [these] differences relate to the basic interests sought to
be vindicated or protected by the statutes."6
The [court] first [must] compare the different statutes
in question, as they apply to the facts of the case, to
determine whether [they] involved differences in intent or
conduct. [The court must] then judge any such differences ...
in light of the basic interests of society to be vindicated or
protected, and decide whether those differences [are]
substantial or significant enough to warrant multiple
punishments. The social interests to be considered ... include
the nature of personal, property or other rights sought to be
protected, and the broad objectives of criminal law such as
punishment of the criminal for his crime, rehabilitation of the
criminal, and the prevention of future crimes.
If [these] differences in intent or conduct are
significant or substantial in relation to the social interests
involved, multiple sentences may be imposed, and the
constitutional prohibition against double jeopardy will not be
violated. But if there are no such differences, or if they are
insignificant or insubstantial, then only one sentence may be
imposed under [the] double jeopardy [clause]. Ordinarily the
one sentence to be imposed will be based upon or geared to
the most grave of the offenses involved, with degrees of
gravity being indicated by the different punishments
prescribed by the legislature.7
6 Id. at 312.
7 Ibid.
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In order to carry out the dictates of Whitton, we turn to the legislative
history behind the statute that prohibits maintaining a building for keeping or distributing
controlled substances.
The statute in question was enacted in 1982, when the Alaska Legislature
revised the drug laws and added chapter 71 to Title 11 of the Alaska Statutes.8 The
legislature's stated purposes were to follow the federal and uniform controlled substances
acts, provide uniform sentencing, and combat illicit trafficking in drugs.9 The statute that
prohibits maintaining a building for keeping or distributing controlled substances,
AS 11.71.040(a)(5), has not changed since its 1982 enactment, except for a small
grammatical change.10
Only one paragraph of the legislative commentary addresses the offense of
maintaining a building for keeping or distributing controlled substances, AS 11.71.-
040(a)(5). And the only example set out in the commentary describes a landlord who
knowingly rents premises to a person who uses the building for manufacturing or
distributing controlled substances illegally:
Paragraph (a)(5) prohibits keeping or maintaining a building,
vehicle or other place which is used for keeping or
distributing a controlled substance in violation of a felony
offense under AS 11.71 or AS 17.30. This provision, for
example, would include the landlord of a warehouse who
knowingly rents to a person who uses the structure for
8 SLA 1982, ch. 45.
9 Commentary and Sectional Analysis for the 1982 Revision of Alaska's Controlled
Substances Laws, Conference Committee Substitute for Senate Bill No. 190, at 1.
10 The 1982 version read "... which is used for keeping or distributing" and the current
version reads "... that is used for keeping or distributing."
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manufacturing or distributing controlled substances
illegally.11
Although the legislature amended the controlled substances laws in 2006, it has not
amended the statute that proscribes maintaining a building for keeping or distributing
controlled substances.
In 1988, in Davis v. State , 766 P.2d 41 (Alaska App. 1988), this Court held
that a defendant could be convicted of a drug offense and separately convicted for
keeping or maintaining the building used to commit that same drug offense. In Davis ,
the defendant was convicted of possessing cocaine with intent to deliver, and separately
convicted of maintaining the building - his own house - where he distributed the
cocaine.12 The defendant argued that his convictions should merge, but this Court
affirmed the separate convictions.
This Court's treatment of Davis's double jeopardy argument consisted of
one conclusory paragraph:
Davis next contends that the double jeopardy clause of the
Alaska Constitution prohibits separate convictions and
sentences for possession of cocaine with intent to deliver,
AS 11.71.030(a)(1), and knowingly maintaining a dwelling
used for keeping or distributing cocaine, AS 11.71.040(a)(5).
We find no merit to this claim. While Davis' violation of
both statutes resulted from a single course of action, the
offenses differ markedly in the conduct that they prohibit and
in the specific social interests that they seek to preserve.
11 Commentary and Sectional Analysis for the 1982 Revision of Alaska's Controlled
Substances Laws, Conference Committee Substitute for Senate Bill No. 190, at 21 (emphasis
added).
12 Davis , 766 P.2d at 42.
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Davis' double jeopardy rights were not infringed by the entry
of separate convictions and sentences on these charges.13
Thirteen years after Davis , this Court decided Tunnell v. State . 14 The
defendant in Tunnell was convicted of multiple counts based on a marijuana growing
operation in his home.15 This Court struggled with whether a defendant who was
convicted for a marijuana growing operation in his home could be separately convicted
for maintaining a building for keeping or distributing controlled substances.16 We
ultimately concluded that it was impossible to tell from the record whether the conviction
for maintaining a building for keeping or distributing a controlled substance should
merge with the other convictions. We therefore remanded this issue to the trial court.
In a concurring opinion which foreshadowed the conclusion that we reach
today, Judge Mannheimer questioned whether the defendant in Davis , who was
convicted of possessing cocaine for the purpose of sale in his own house, could also be
properly be convicted of maintaining a building for keeping or distributing that
controlled substance.17
We now conclude, based on the legislative commentary, that the offense
of maintaining a building for keeping or distributing controlled substances is aimed
primarily at persons who facilitate someone else's drug offenses - to quote the
commentary, people such as "the landlord of a warehouse who knowingly rents to a
13 Id. at 46.
14 Alaska App. Memorandum Opinion No. 4465, 2001 WL 1173976 (October 3, 2001).
15 Tunnell, 2001 WL 1173976, at *4.
16 Ibid .
17 Id. at *11-12 (Judge Mannheimer, concurring).
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person who uses the structure for manufacturing or distributing controlled substances
illegally."18
It appears that the legislature enacted AS 11.71.040(a)(5) to reach people
who facilitate the commission of drug felonies by providing a building or other structure
for keeping or distributing the controlled substance, but who would not necessarily be
prosecutable as accomplices to the underlying drug offense.
To be convicted of violating AS 11.71.040(a)(5), a defendant must have the
authority to control the structure, and the defendant must be aware that the property is
being used for illegal purposes. 19 However, such a defendant would not necessarily be
an accomplice to the underlying drug offense - because mere awareness that a crime
is being committed is normally not sufficient to establish complicity under
AS 11.16.110(2). 20
Thus, as this Court recognized in Wahrer v. State, 901 P.2d 442, 444
(Alaska App. 1995), a defendant can be successfully prosecuted under
AS 11.71.040(a)(5) even though the State is unable to prove that the defendant bears
accomplice liability for the underlying illegal drug activities that take place in the
building or structure - i.e., even though the State is unable to prove that the defendant
aided or abetted those illegal drug activities with the specific intent to promote or
facilitate the commission of the underlying offenses. See AS 11.16.110(2).
We now turn to an analysis of Rofkar's convictions. Under the trial judge's
instructions, the jury could find Rofkar guilty of maintaining a building for keeping or
18 Commentary and Sectional Analysis for the 1982 Revision of Alaska's Controlled
Substances Laws, Conference Committee Substitute for Senate Bill No. 190, at 21.
19 Dawson v. State , 894 P.2d 672, 677-79 (Alaska App. 1995).
20 See the discussion of this point in Riley v. State , 60 P.3d 204, 210 (Alaska App. 2002).
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distributing controlled substances if the jury found that Rofkar had control over the
building and knew about the marijuana growing operation. To convict Rofkar of this
charge, the jury did not have to find that Rofkar actively controlled or participated in the
marijuana growing operation, or that he acted with the purpose of promoting or
facilitating this illegal drug activity. The State only had to prove that Rofkar "knowingly
permitted the illegal drug activity to take place on the premises."21
But if the jury was convinced of this, the jury could also convict Rofkar of
the other three charges (the allegations of marijuana possession and manufacturing)
under a complicity theory, if the jury additionally found that Rofkar acted with the intent
of promoting or facilitating the marijuana growing operation. In other words, the proof
of this additional culpable mental state (intent to promote or facilitate), coupled with
Rofkar's act of providing a building to house the marijuana grow, rendered him guilty
of the other marijuana charges. See AS 11.16.110(2).
Under this complicity theory, Rofkar's composite conviction on the three
counts of possessing or manufacturing marijuana essentially encompassed his conduct
of maintaining a building. Rofkar's act of providing the building for the marijuana grow
did not differ substantially from the conduct that underlies his convictions on the other
three marijuana counts. We therefore conclude that, under Whitton, Rofkar's conviction
for maintaining a building for keeping or distributing controlled substances must merge
with his composite conviction for the other three marijuana offenses. To the extent that
Davis v. State , 766 P.2d 41 (Alaska App. 1988), is inconsistent with this decision, that
case is overruled.
21 Wahrer, 901 P.2d at 444.
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Conclusion
The superior court is directed to vacate Rofkar's separate conviction for
maintaining a building for illegally keeping or distributing controlled substances, and to
merge this conviction with Rofkar's conviction on the other charges. The superior court
is further directed to resentence Rofkar.
We do not retain jurisdiction of this case.
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