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rejecting a challenge to the constitutionality of Alaska's controlled substances laws on the theory that the laws could criminalize innocent behavior because the facts of the defendant's case showed that her conduct was "within the core of the statutory prohibition"
Summary of this case from Petla v. StateOpinion
Court of Appeals No. A-8590.
October 20, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-01-3660 Cr.
Brant G. McGee, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Anne D. Carpeneti, Assistant Attorney General, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
The question presented in this appeal is whether a person may be convicted of controlled substance misconduct under one or more of the provisions of AS 11.71 if the only controlled substances in the person's possession are trace amounts found in objects characteristically used as drug containers ( e.g., bindles made from paper or aluminum foil) or objects characteristically used for drug ingestion ( e.g., syringes or pipes). For the reasons explained here, we conclude that the Alaska Legislature intended the provisions of AS 11.71 to apply to possession of trace amounts under these circumstances.
Underlying facts
In May 2001, Fortune Kurzendoerfer got into an argument with her domestic partner, Robert Benefield Jr.. During the argument, Kurzendoerfer hit Benefield in the face, and she was later arrested for this assault.
When Kurzendoerfer was arrested, the police searched her purse. Inside the purse, the police found drug paraphernalia, including two syringe needles, a paper bindle, aluminum foil that had a black residue on it, and two spoons (one with residue). In addition, the police observed needle marks (both recent and old) on Kurzendoerfer's arms.
The police sent Kurzendoerfer's drug paraphernalia to the Alaska Crime Laboratory for analysis. The laboratory analyst who examined these items observed residue of some type on the syringe needles, the aluminum foil, and one of the spoons, but the amount of residue was not enough to be weighed accurately.
(The analyst testified that the Crime Lab's equipment could accurately weigh an object weighing "several milligrams". There are approximately 28,350 milligrams in one ounce. So, for example, 5 milligrams equals approximately 0.000176 ounces — that is, less than 2 ten-thousandths of an ounce. Apparently, the drug residue found on the various items of Kurzendoerfer's drug paraphernalia weighed even less than this.)
The Crime Lab analyst tested the various residues using gas chromatography mass spectrometry. The tests yielded traces of methamphetamine in the syringe needles and on the paper bindle, and traces of cocaine in one of the syringe needles and on one of the spoons. (No controlled substances were found on the aluminum foil.) Based on the Crime Lab's discovery of these microscopic amounts of methamphetamine and cocaine, Kurzendoerfer was convicted of two counts of fourth-degree controlled substance misconduct.
AS 11.71.040(a).
Under Alaska law, can a person be convicted of controlled substance misconduct based on the person's possession of microscopic traces of a controlled substance?
In Judd v. State, 482 P.2d 273 (Alaska 1971), and again in Lee v. State, 511 P.2d 1076 (Alaska 1973), our supreme court addressed the question of whether a person can lawfully be convicted for possession of microscopic traces of a controlled substance. Although the discussion in Judd is arguably dictum (since the defendant in Judd possessed an obviously usable amount), the court's decision in Lee constitutes a direct holding on this issue.
Judd, 482 P.2d at 275, 279.
In Lee, the defendant was charged with unlawful possession of heroin based on chemical analysis of residue found in one of several balloons seized from his pocket. Although the Lee decision does not explicitly state how much heroin was found in these balloons, the court's later decision in Moreau v. State describes the amount in Lee as "less than a milligram". (One milligram is approximately 35 millionths of an ounce.)
Lee, 511 P.2d at 1077.
Moreau v. State, 588 P.2d 275, 285 (Alaska 1978).
The defendant in Lee contended that he could not properly be convicted unless the State proved that this residue constituted a usable amount of heroin. The supreme court rejected this argument, reiterating what it had said in Judd:
Lee, 511 P.2d at 1078.
Where the facts of a case show knowing possession of illegal drugs, it is unnecessary that a usable quantity be found so long as a sufficient quantity is found to permit proper identification [of the substance]. If all of the evidence in the case, taken together, supports [a finding] of knowing possession beyond a reasonable doubt, the conviction is proper.
Lee, 511 P.2d at 1078.
Quoting Judd, 482 P.2d at 280.
Based on the supreme court's decision in Lee, the Alaska Legislature enacted AS 11.71.320(a), which states that, in prosecutions for unlawful possession of a controlled substance, "it is [no] defense that the substance was possessed in less than a usable quantity [so long as] there is a sufficient quantity of the substance to permit proper identification."
The legislative Commentary and Sectional Analysis to the 1982 revision of Alaska's drug laws explains that AS 11.71.320 was intended to codify "the law established in Lee v. State, 511 P.2d 1076 (Alaska 1973)." 1981 House Journal, Supp. No. 60 (June 19th), p. 24.
Kurzendoerfer concedes that Lee and AS 11.71.320(a) seemingly declare that the test is whether the amounts of methamphetamine and cocaine in her possession were "sufficient . . . to permit proper identification" of these two controlled substances. But Kurzendoerfer argues that this language must be interpreted in light of AS 12.45.084, a statute that governs the content and the evidentiary effect of laboratory reports prepared by the State Crime Lab (and any other laboratory run by a law enforcement agency).
AS 12.45.084(a) declares that, when a police-run laboratory analyzes a substance for the purpose of a prosecution under AS 11.71, the official laboratory report constitutes prima facie evidence of the identity and weight of the substance, but the laboratory report "must state that the substance [at issue] has been weighed and analyzed" by an identified laboratory analyst, and this analyst "[must] state with specificity [their] findings as to the content, weight, and identity of the substance".
Based on the fact that this statute requires the laboratory analyst to specify the measured weight of the controlled substance, Kurzendoerfer argues that even though Alaska law does not require proof of a "usable" quantity, Alaska law does require proof of a "measurable" quantity — by which she means a weighable quantity.
Kurzendoerfer contends that a defendant can not be convicted of unlawful possession of a controlled substance unless the government ascertains and proves the exact weight of the controlled substance. Thus, Kurzendoerfer argues, if the amount of controlled substance is so small as to be incapable of accurate weighing, a conviction for possessing this controlled substance would be improper.
We do not interpret AS 12.45.084(a) to preclude prosecution of trace amounts of a controlled substance. First, the statute does not specify when prosecutions for drug offenses may be undertaken. Rather, the statute specifies the circumstances in which the official report of a police-run laboratory will be deemed prima facie evidence of the identity and weight of a controlled substance. Moreover, we interpret the statute to require the laboratory analyst to specify the measured weight of the controlled substance to the extent possible.
Thus, the fact that the amount may be too small to allow accurate weighing is not a bar to criminal prosecution. As our supreme court clarified in Moreau the law prohibits unlawful possession of controlled substances in any amount. If the amount is merely a trace, this may raise a question as to whether the defendant's possession of the controlled substance was "knowing"; but if this culpable mental state is proved, a conviction is proper:
Possession of even a trace of a prohibited drug may be sufficient to sustain a conviction where other evidence supports the inference of knowledge. Where the prohibited substance is itself mixed with or contained within an innocuous substance or object, it is necessary that the state prove the defendant's knowledge of the narcotic character of the substance. A defendant's knowledge of the narcotic character of a substance can be shown by inferences that can be reasonably drawn from facts in evidence.
Moreau, 588 P.2d at 285 (footnotes omitted).
Kurzendoerfer next argues that if Alaska's drug laws are construed in this fashion, they are void for vagueness in that they fail to give people reasonable warning of what is prohibited. She contends that it is fundamentally unfair to convict people for "possessing something that neither they nor anyone else could see" — "something that was literally invisible".
We conclude that this constitutional objection is answered by the law's requirement that the possession be "knowing". The State must prove that the defendant unlawfully possessed the controlled substance, but the State must also prove that the defendant acted "knowingly" with respect to their act of possession — i.e., that the defendant "[was] aware that [their] conduct [was] of that nature". Thus, AS 11.71 does not prohibit the unwitting possession of controlled substances, no matter how large or small the amount involved.
AS 11.81.900(a)(2) (the statutory definition of "knowingly" that governs Title 11).
For this same reason, we reject Kurzendoerfer's argument that Alaska's drug laws violate substantive due process by attaching criminal penalties to innocent behavior. While it may be possible, as Kurzendoerfer suggests, that our drug statutes could present colorable due process problems at the outer limits of their applicability, the facts of Kurzendoerfer's case show that her possession was within the core of the statutory prohibition. As we noted in Petersen v. State, 930 P.2d 414 (Alaska App. 1996), when a constitutional challenge is leveled against a statute whose main concern is conduct rather than speech, "the possibility of difficult or borderline cases will not invalidate [the] statute" if there is a "hard core of cases to which . . . the statute unquestionably applies".
Petersen, 930 P.2d at 429, quoting Stock v. State, 526 P.2d 3, 9 (Alaska 1974).
Although Kurzendoerfer possessed only trace amounts of methamphetamine and cocaine, these traces were found in syringe needles, a paper bindle, and a spoon. This circumstance supported a reasonable inference that Kurzendoerfer knowingly possessed these trace amounts of controlled substances.
Finally, Kurzendoerfer argues that if our drug laws are construed to allow prosecution and conviction for possession of microscopic amounts of controlled substances, this will encourage discriminatory or arbitrary enforcement of the law. But Kurzendoerfer makes no showing that the government has engaged in discriminatory or arbitrary enforcement of the drug laws. This is fatal to her argument. See State v. Weaver, 736 P.2d 781, 783 (Alaska App. 1987), where we reiterated the rule that a statute will not be declared void on the ground of potential discriminatory or arbitrary enforcement unless the person challenging the statute shows that the government has in fact engaged in discriminatory or arbitrary enforcement in the past.
Conclusion
The judgement of the superior court is AFFIRMED.