*1 and, employer; the control of their normal or under thing as the usual and same not the teacher typical through arguably Kokhanok school sanc that a while route LPSD — Jones — and from expected to take to school, would be their visit to the their losses tioned school. traveling while to the school under occurred going covered by the and com circumstances language special- history and rule, ing by special-hazard rather than suggest that it is intended exception hazard sys- compensation exception. the workers’ to draw into closely to the work- are tied tem risks that Although eagerness to visit the Malones’ repeatedly confronted. Historical- place and certainly their new school was understanda- Larson, factories ly, according to Professor purpose in to deciding and their make the ble railroads, only so that the were situated near commendable, undeniably the set- visit way “pick,
way get to one’s to work was of the Alaska Com- tled standards Workers’ tracks, sidings, and even switching through permit pensation do not the conclusion Act compensation deny To main lines. workers’ their arose “out of and in the losses necessity injured employees because employment.”27 course running most daily gauntlet such struck concept as out of tune with broad courts IY. CONCLUSION Accordingly, courts of work-connection.”25 special-hazard exception. developed reasons, For these we AFFIRM the compensation. denying Board’s decision yet begun had not teach The Malones and had no or normal route Kokhanok usual They expected to move to work. teaching their
village of Kokhanok once they began began. Obviously, once
duties jobs, their normal route to work would
their flying. The true of other not involve same is COLLINS, Appellant, Artie R. teachers, routinely are ex- Kokhanok pected village to live the school
year. newly-hired teachers —or Nor would Alaska, Appellee. STATE of that mat- employees, other LPSD No. A-6724. expected fly normally be or ter — from pre- Anchorage to for a Kokhanok Appeals of Alaska. Court contrary, undisput- To school-year visit. April ed that LPSD went out evidence establishes way discourage by summer visits of its teachers; arriving
new and for most teachers year, LPSD beginning the school transportation
arranged to Kokhanok directly from its head-
commercial carrier King may
quarters in That Salmon. LPSD acquiesced in the decision to
have Malones’ visit did not
come to Kokhanok for a school “only, flight Anchorage their
make their
normal, expected [work.]”26 route to
Accordingly, totality of evi even when favorable light
dence is viewed most
Ann, her LPSD it could not sustain claims. travel to the require
did not the Malones to supply transportation; their them
school performed at the direction
activities were not Sokolowski, Larson, Compensa- at 292. 26. See P.2d Arthur Larsons Workers' 25.1 4-38, (em- (1998) 15.13(b), § 4-39 Law tion 23.30.395(17). added). phasis
743 *3 Bair, Dan Rex Rex Lamont Butler and S. Associates, Anchorage, Lamont Butler and Appellant. McDannel, Attorney Assistant Marcelle K. General, Special and Prosecutions Office Botelho, Anchorage, Bruce Appeals, and M. General, Juneau, Appellee. Attorney COATS, Judge, and Before Chief STEWART, Judges. and MANNHEIMER OPINION STEWART, Judge. R. was tried
Artie fourth-degree mis- counts convicted two substance,1 involving controlled conduct (a)(5). tl.71.040(a)(3)(A)and second-degree interviewed, count in- eyeglasses. one misconduct wоre When volving weapons,2 and one count of third- guns admitted that the were his that he weapons.3 degree involving misconduct On bought them the on street No $50. superior appeal, he maintains court fingerprints gun. on usable were found either granted judg- should have his motions for Evidence was trial acquittal ment count. He also purpose removing usual a serial number erroneously that evidence was admit- gun from a is to that gun render untraceable. causing ted two areas reversible error. bedroom, In the closet in the southwest below, uphold For reasons discussed we day pack containing seized a black possession Collins’s convictions for of cocaine scales, scissors, pipe, plastic a crack bag- possession of an firearm and altered gies, piece plastic wrap, bag. *4 maintaining reverse for his convictions a small, precise, scales were and electronic possession crack house and of a firearm dur- commonly weighing used for cocaine. The ing the a felony drug commission of offense. scales had traces of cocaine on them. From room, they papers, day also seized a proceedings Facts and planner, phones pagers. two cellular and two 3, 1997, January Anchorage On Police day planner paper contained a Department anonymous tip received an police drug-sale described as a record. The occurring apartment sales at # 10 planner “Stoney was identified with the name Eagle’s up Nest Hotel. Police set Mac,” answered, a name to which and Collins shortly surveillance thereafter and observed (Collins),” the name of “Odessa Watson people apartment five or six enter within planner as was listed “mother.” The con- period a ten-minute and leave' after brief entry propose marriage tained an to “Kim- police visits. The obtained a search warrant berly” fingerprints on Christmas. Packer’s apartment # (but Collins’s) planner. were found p.m., police After 11:00 returned Page Records from the Personal showed that apartment # 10 to execute search war- pager belonging a to Collins had received Washington opened rant. David the door 1,000 more than calls one month. Police apartment and the officers entered. The seized from Collins. $197 bedrooms, room, living consisted of two items, police also seized various in- kitchen and a bathroom. Collins was found straw, cluding piece coat hanger, Kimberly the southwest bedroom. Packer knife, and a M & M with container a white Marilyn apart- and Medina were also in the living residue from the room area. The appeared ment. Packer to be either under yielded north gar- bedroom scale inside a the influence cocaine or in cocaine with- bage bag. copper pipe Police also found a drawal. piece Boy, with a of Chore a test tube with During pursuant search to the war- piece Boy, another of Chore and two small rant, police handguns seized two from containers in the north bedroom. A broken under the same side of the mattress pipe” “crack was found in the kitchen. Col- bedroom, southwest оne the foot of the police lins told he in apartment resided bed, the head. other The serial num- #10. handgun ber on one had been filed off. The trial, Collins, Medina, Packer, At handgun, caliber, altered an Acutec .380 was Washington testify. did objected loaded with two live rounds. The other purported admission of two “drug handgun, a 9-millimeter Inter Arms Fires- ledgers,” tar, day planner, one found in the was loaded three live rounds. A the other found elsewhere in the box .380 southwest caliber bullets with two rounds objected bedroom. He Judge removed was also also Sout- found the southwest green bag permit police bedroom in a er’s decision to that also contained certain officers eyeglass testify experts. ease cards that had as Souter over- alias, pager Stoney. objections. number his ruled those At the end 11.61.200(a)(6). 2. AS 11.61.195. going to I’m ob- acquit- DEFENSE COUNSEL: judgment moved for discovery. ject his as to denied every count.
tal on Object discovery? motions. as THE COURT: Yes, sir. DEFENSE COUNSEL: Discussion I didn’t hear where that THE COURT: any discovery. The ob- called for sort experts as Testimony of'police officers jection is overruled. maintains that appeal, Collins On again, the issue nor did Collins did not raise erroneously ad- was officers of relief. ask form objection. mitted over appeal, that Detec On awhy Pam Nelson was asked Officer similarity Bryant’s testimony about tive fire removed from a number would be serial Eagle’s Nest of other crack houses objected that the answer called arm. testimony apartment expert that was objection was speculation. After that discovery notice without overruled, num that a serial Nelson testified Criminal Rule 16. He asserts that Alaska from a firearm might be removed ber 16(b)(1)(B) Procedure re Rule Criminal renews it untraceable. Collins render testimony.5 quired discovery But it is of this testimony speculative. argument that *5 16(b)(1)(B) Rule not clear to us Criminal that not that Souter did abuse conclude We officers, applies Bryant, like to permitted he that testi discretion when testify to observations and their on-the-scene objection.4 Nel mony Officer over training expe conclusions based on their and testimony experience on and based her son’s so, to rience. Collins did not articulate Even training handguns speculative. discovery purported the the trial court how that Officer Nelson now maintains Collins defense.6 did he prejudiced violation Nor proper expert testimony without offered speсific object any ask for relief other than testify to an qualification by the court as put Bryant. to ing question to the not make expert witness. But Collins did implicitly argues that denied testimony objection to Officer Nelson’s that relief, including request for a continu all Therefore, he did not in the trial court. ance, objection the as when overruled preserve appeal. that issue for discovery. disagree. We objected questions also to certain If defense claims a mid-trial the put Bryant Bruce on basis to Detective the violation, discovery pres defendant must the foundation, would lack that his answers of plausible with a claim ent the trial court irrelevant, for hear- call speculative, would If appropriate relief. prejudice request and objected to the say. also State’s purport requested for a a continuance is posed Bryant regard- question Detective violation, ordinarily discovery ed waives he noted between this ing what consistencies a continuance should have any claim that other “crack houses” he seen case and any request did not granted.7 Collins past. been the State, 1349, (Alas- proposed Hawley description the of substance v. 614 P.2d 1361 See expert’s opinion, 1980). testimony expert, the ka opinion. underlying Fail- basis of that timely provide disclosure under this rule ure to 16(b)(1)(B)provides: Rule 5. Criminal a continuance. If the defendant shall entitle (B) Expert Witnesses. Unless different is not an finds that a continuance the court court, by the as known and date is set as soon remedy adequate under the circumstances trial, days priоr prose- 45 no later than may impose other sanc- the tions, the court of the names shall inform defendant cutor prohibiting prosecutor including expert perform- witnesses and addresses declaring calling expert at trial or ing connection with case or whom work in mistrial. likely prosecutor is at to call trial. State, 344, (Alas- v. 805 P.2d 348-49 6. See Bostic prosecutor available for in- shall also make State, 1991); P.2d 916-17 Jurco v. any reports ka spection copying and written (Alaska App.1992). experts. respect With statements of these prosecution likely expert whom the trial, prosecutor 561 P.2d 7. See Scharver v. call shall also furnish to a curriculum vitae and written the defendant specific purported Arteaga recognized relief address the dis- forms. The court that covery violаtion. We conclude that this issue ruling hearsay objections that eliminated the was waived. recognized that the forms at issue that Arteaga’s case that were found home were drug day ledg- Admission planner charged circumstantial crimi- ers nal conduct.10 argues next docu that certain Although argues the docu- trial, day planner ments admitted ments were for the question admitted paper two sheets described as asserted, truth of the matter that was not ledgers, erroneously admitted over his ruling. Judge Souter’s announced The docu- hearsay objection. He claims the of in question ments here as were admitted fered the exhibits for the truth the matter circumstantial evidence of cocaine transac- asserted. The two sheets were described premises. on tions names, the court as “a list of numbers and Many courts have allowed introduction reasonably the jury from that can draw “drug ledgers” not for the truth of inference that it’s list customers[.]” papers Collins also claims ledgers, were ad entries on the but as circumstantial foundation, is, mitted without sufficient drug-related evidence that activities were oc inadequate proof there was curring premises on the where records authored the He documents. also Wilson, were found. In United States that the documents were not admissible un court ruled that certain records that were exception der the business record to hears premises prosecution found where the ay.8 Judge Souter admitted the documents alleged drug trafficking occurring asserted, not for the truth of the matter but were admissible as circumstantial evidencе *6 drug as relevant circumstantial evidence of trafficking drug occurring on the occurring premises. transactions on the In evidence, premises.11 however, “The did words, other the documents were circum apartment being tend to show stantial evidence that controlled substances Also, drug trafficking.”12 used for in United Eagle’s apart were distributed in the Nest court, Jaramillo-Suarez,13 v. States fol ment. Wilson, lowing approved the introduction of Arteaga,9 relies United States v. “pay/owe” sheets as circumstantial evidence support as argument. Aiteaga, for his In drug apartment trafficking in the where “to-send-money” the trial court admitted they were found: “to-receive-money” forms from Western Un- pay/owe in present sheet case was a money-laundering ion in scheme where specific pur- admitted for the and limited proceeds of cocaine sales in Alaska were pose showing the character use of wired to California. The district court first apartment.... pay/ [] Because the admitted forms under Federal Rule of probative owe sheet’s value for the limited Evidence 803 as business records later purpose for which it was admitted was stated that the forms were admissible independent contents, of the truth of its hearsay exception the catch-all because the against hearsay implicat- the rule was not guarantees forms had circumstantial of trust- ed[J14 objections worthiness. In the face of Similarly, in Enriquez-Est United States v. the defendants in the the district court rada,15 ultimately approved ruled that the forms were admit- court the introduction ted truth drug ledger of the matters on to show the nature of the 803(6). 8. Alaska Rule of Evidence 12. Id. — (9th Cir.), denied,
9.
11. See 532 F.2d 645-46 Cir. (9th Cir.1993). F.2d object to he did not argument. Because ledger was tor’s where of the residence use of the evidence People Harvey,17 the claimed misuse in And found.16 non-hearsay drug argument, preserved use of issue he has upheld the court claimed Finally, in connected Collins has not appeal. found homes ledgers evidence co prosecutor’s argument as circumstantial final created defendants conspiracy.18 a cocaine caine sales and plain error. that it was not abuse conclude We Sufficiency the evidence to admit Souter
discretion as circumstantial evi- contested documents claims that activity the issue of drug because dence judg his motiоn for erred when he denied mate- substances is a trafficking controlled acquittal on count. When ment of to count II. rial issue for insufficien attacks a conviction defendant evidence, view the evi cy of the we must relating issue raises another presented, and reasonable inferences dence question. He to the documents evidence, light favorable from the in the most prosecutor’s argument, final during the Viewing jury’s upholding verdict.22 drug information prosecutor used we must perspective, from this the evidence of the matter asserted. ledgers for the truth juror exercis whether a fair-minded decide prosecutor purportedly used Because judgment could conclude that ing reasonable matter for the truth of the that information proving guilt met its burden of the State it admitted for thе when was not asserted beyond a reasonable doubt.23 contents, argues that his truth of its He relies on should be reversed. conviction Possession cocaine Lai.19 United States v. co stipulated that there was Lai, drug court admitted the In the trial apart in the residue on various items caine of Lai’s
records as circumstantial scales, ment, including on the on various Lai, activity. drug But alleged criminal paraphernalia pipes, on other crack that the documents government conceded described found in his residence. prove particular transac- used paraphernalia found the various items conspiracy elements of the tions that were typically apartment that were around the charged. The Lai court con- that was count *7 co hearsay mаrketing and crack used for cocaine the records were cluded that addition, present prosecution re- proper for the records were In the foundations caine. through quired.20 pager district court had not had Because the that ed evidence Collins for admission of the foundation received Page addressed on which he had Personal hearsay, the court did not the records as pages in a month. more than a thousand conviction, remanded the but jury reverse Lai’s the cards prosecution The showed hearing for court on case to the district to Collins pager number issued that had the proper basis whether there was alias, two Stoney Mac. The along with of admission those records.21 (that admitted were handguns loaded his) under the mattress of were found nor has the State has not claimed was found in the room where Collins bed that the use of documents conceded prosecution police entered. when question for truth asserted the docu- testimony it was consistent presented that necessary to establish element ments was cocaine to have with the retail distribution charged counts. And Collins of one of the readily firearms. portion proseeu- available objected never id. 21. See 16. See id. 1360. 1206, Cal.Rptr. Cal.App.3d 158
17. 233
285
State,
Simpson
P.2d
1320
22. See
(1991).
App.
18. See id.
167-68.
(Alas-
622 P.2d
Dorman v.
See
Cir.1991).
(9th
While most of the evidence was with that number the intent to render the firearm relating and, sented to this count was untraeeable, second, circumstan- that acted tial, jury entitled make was reasonable “knowingly”24 respect to this circum- inferences from that evidence and conclude stance. possessed cocaine. While it was record, our From review we con- possible jury also for the to infer that other jurors agree clude that reasonable could occupants apartment were the ones prosecution proven beyond had this count cocaine, Collins, possessed and not purchased a reasonable doubt. Collins both reject jury permitted those con- handguns, including handgun, the altered on agree prosecution clusions and that the had the street from a he did not know proven beyond count reasonable doubt. The jury was entitled to infer that he $50. handgun loaded altered and hid it under Keeping maintaining a “crack house” jury the mattress in the bedroom. Thе also possession during commis- firearm testimony purpose that a for the felony drug sion offense obliteration or of a removal serial number on We conclude that Collins’s conviction on a firearm is to render the firearm untracea- these must counts be reversed for the rea- ble and could infer from the circumstances of expressed sons Mannheimer’s con- purchase possession opinion. curring handgun that he knew the serial number had been removed from the firearm in order Possession an altered firearm render it untraeeable. Finally, Collins maintains there was insufficient evidence to show that he Conclusion handgun knew that the with the serial num ber removed had been altered with intent to here, explained For the reasons we AF- above, render it untraeeable. As we nоted FIRM possession Collins’s convictions for handguns admitted possession cocaine and of an altered firearm. purchased his. also He said that he both We REVERSE his conviction for maintain- handguns “on the street” for al $50. ing a crack house REMAND entry handgun tered was admitted into evidence judgment acquittal on that count. We allowed examine where REVERSE possession Collins’s conviction of the serial number had been obliterated. The of a firearm the commission of a prosecution also evidence from two felony drug offense and REMAND for a new officers removal of serial trial count. weapon number from a exhibited an intent to render that firearm untraeeable. MANNHEIMER, Judge, concurring. maintains that the State was re- Two of Collins’s convictions must re- quired present possessed evidenсe that he *8 versed: conviction under AS handgun specific with the intent that the 11.71.040(a)(5) maintaining for a structure weapon disagree. be untraeeable. We Alas- storing used distributing for or controlled 11.61.200(a)(6) provides ka Statute a (the statute), substances “crack house” third-degree weapons commits mis- 11.61.195(a)(1) his conviction under AS person: conduct when the possessing a firearm the commission possesses a firearm which the manufac- felony of a drug offense. removed, turer’s serial number has been
covered, altered, destroyed, knowing or maintaining Collins’s conviction for a crack removed, that the serial number been has house must be reversed because the State covered, altered, destroyed or with in- present failed sup- to sufficient to evidence rendering tent of the firearm untrаcea- port finding a that Collins controlled the ble[J motel drugs suite where he were statute, prove, Under this found. for possessing State must Collins’s conviction a first, that had someone removed the serial firearm during felony a commission of 11.81.900(a)(2). 24. See AS any to that Collins or other evidence show be reversed because must drug offense (and (or housemates, no three any thus made of the other instructed
jury was not matter) element concerning an essential finding) legal or actual au- had either a nexus requirement of offense: thority premises authority control — possession of the the defendant’s between reside there and control decide who would commission and the defendant’s firearm premises. on the what occurred felony. judgement for a Collins moved When charge, Judge recog- acquittal on this Souter building maintaining a The conviction for Ad- in the State’s evidence. nized this flaw distributing storing or used for prosecutor, Judge said: dressing the Souter controlled substances “keep- question got I’ve here is [T]he statute, AS The crack house ing maintaining” [element of- 11.71.040(a)(5), the defen requires fense]_ prove that [ele- order to [I]n type of some “struc kept or maintained dant ment], ... has to show that the the State storing distributing controlled or ture” for right or had the defendant controlled per that a The statute declares substances. And, premises. than his other control if he or she: commits the offense son there, he what else lived [statement] store, knowingly keeps or maintains there, Prosecutor]? [Mr. warehouse, building, vehi- shop, dwelling, boat, aircraft, cle, or or other structure pros- resрonse judge’s question, to the In keeping or distribut- place that is used arguments. two ecutor of a violation ing controlled substances argued that the State prosecutor The first [AS 11.71] under or AS felony offense prove that Collins had sole not have did 17.30[.] suite; it be suffi- of the motel would control charged him against The indictment joint control with one or cient if he exercised building”. maintaining “dwelling or may This housemates. be cor- more of his kept theory The State’s rect, help position it does not the State’s but (really, a motel motel room maintained the present failed to the State because suite) housemates where and his three premises. anyone’s control drugs found. living where the were if prosecutor argued next even The suite was both “dwell This motel prove who controlled the State failed “building” as these terms are ing” and suite, evidence did tend motel State’s 11.81.900(b). in AS Under AS defined and distrib- drugs had been stored show that 11.81.900(b)(20),“dwelling” particu means suite, the bedroom of the uted in the south building building that is de kind of lar —“a slept. prosecu- where Collins bedroom person’s per signed for use or is used as go that the State’s case could tor contended place of temporary home or manent theory that Collins under the And, definition of lodging”. the south bedroom. “controlled” 11.81.900(b)(3), “building” contained argu- in a mul- separate apartment accepted or office second “building”. is considered ti-unit structure ment: Well, really ... was ... the hotel room by Collins and suite shared motel suite, just a room.... [T]he apartment hotel separate was a
housemates Thus, there were testimony [shows that] if the- State multi-unit structure. *9 living that motеl area. it’s hotel proved Collins controlled and a So that bedrooms suite, [living] been sufficient people this would have four suite. And there were “building” kept ..., or maintained and three others. defendant there the “dwelling”. and a testimony only that ties the defen- And the testimony of [premises] is the to the dant prove The failed to this. But the State ... in the was found police that he the in that lived showed State’s bedroom, of his a number south where that it also showed motel suite —but the ... found. belongings [also] personal the The people lived in suite. three other lease, he lived there. that And his statement produce receipts, a rent did not State got apartments all “buildings” I’ve to draw reasonable infer- and suites motel are purposes “dwellings” ences in of the of Title 11. [G]iven favor State.... separate apart- personal belong- the that he But the bedrooms within fact had his there, ings guns ments and motel suites are not.1 including some mattress, pretty appar- were under the it’s granted Souter should have Col- controlling ent that he was the bedroom. judgement lins’s acquittal. motion In- mean,-... there, I stuff stead, charge presented he allowed this guns [That two under the mattress.... argued jury improper to the jury evidence from which the is] could legal theory. reasonably infer that he was in control of appeal, pursues On the a dif State deny going the room.... I’m [S]o the justify theory ferent Collins’s conviction. judgement acquittal[.] motion for State Collins “controlled” ruling This was error. motel suite because he was dealer difficulty first “bed- State’s addicts, living among drug and because he theory physical room” that Collins’s is occu- only рossessed was the resident who fire pancy of the south bedroom does not amount this, arms. From concludes that legal control the crack socially among Collins was dominant the four leasing house statute. Whoever rent- or manipulate residents of the suite: he could ing normally the motel suite would “control” by cutting supply the others their off (in all rooms and areas within the suite cocaine, and he could exercise “brute authori having legal authority sense to decide ty to have the final word in discussion there). who lived there and what went on with [his] unarmed [housemates]”. presented The State no evidence as to the Whether Collins “controlled” his house- identity persons of the or who leased mates in this fashion is irrelevant. The or By rented the motel suite. the same requires proof crack house statute that Col- token, the State no evidence that kept lins or maintained premises —the subleasing agreement Collins had a with the motel suite. As we held in Dawson v. unidentified lease-holder suite. The requires proof this statute that the defendant mere fact that Collins lived in the south authority “controlled] ha[d] or to control the place bedroom did not him in “control” of occupancy or use of the structure”.2 that bedroom. speculate One can in a Collins was Equally important, even if position physical psychological exercise or State’s evidence had established that Collins housemates, control over his three legal exercised control over the bed south point they acquiesce where would in whatev- room, prove would be sufficient to еr he chose to do in his But this bedroom. violation of the crack house statute. The only speculation, would be for the State rais- requires proof statute the defendant es this factual issue for the first time on kept or maintained a “structure” —in Col appeal. The argue State did not its case “dwelling” trial, lins’s “building” or cited way jury was not asked to above, explained Moreover, the indictment. As convict theory. Collins under this conceivably argue 1. One person keeps building, could because AS A or maintains a 11.71.040(a)(5) speaks “any I) ... structure or dwelling!,] place or other structure or if: may place”, the statute have been intended to person knowingly uses or allows another apply apartments to individual rooms within or building, dwellingf] use the or other structure However, given motel suites. list struc- operation involving keeping for a business places 11.71.040(a)(5), tures and included in AS distributing or of one or more controlled sub- appear likely this does not be a construction of stance[s]; 2) keeping distributing the statute. substance(s) felony controlled a in violation statutory interpretation This issue need not 11.71; 3) person, of AS either alone or First, be addressed reasons. the State others, right controls has the to control Second, argument appeal. does raise this building, dwellingL] or other structure^] instructions in Collins's case did not *10 jury theory allow to convict him (Alaska App.1995). 2. 894 P.2d 676 kept "place” opposed that he or maintained a as 16(a) jury: to a "structure”. Instruction told the
751
required proof
some connection
of
physical
psy-
statute
had
if
exercised
even Collins
drug
the firearm and the
offensе.
three
between
over the other
chological dominance
suite,
not
this does
of the motel
residents
(a) Proper characterization
Collins’s
“ke[pt] or maintain[ed]”
of
establish
motion
proof
of
premises
element
—the
house statute.
by the crack
important
that
It is
to note
actually
judge
“motion
was not
a
for
motion
reasons,
that Col-
we conclude
For these
acquittal”
though Judge Sout
of
ment
violating the crack house
for
lins’s conviction
—even
by
it
parties referred to
this
and both
er
must
reversed.
statute
court,
though
and even
both
label in the trial
a
possessing
way
The conviction
to it this
parties continue to refer
firearm
drug
a
during the commission
contention was—-and
appeal. Collins’s basic
of
felony
possessing
the offense of
a firearm
is—that
felony drug
during
a
of
the commission of
violating
charged AS
was
requires
of one additional ele
fense
11.61.195(a)(1),
prohibits a
which
weapon and the
ment: a nexus between the
during the commis-
“possessing] a firearm
drug
alleged
element was not
offense. This
11.71.010—
of an offense under AS
sion
indictment,
jury
instructions
that
The
11.71.040”.
it; thus,
jury
never
made no mention of
and that Collins
possessed cocaine
of the offense.
this asserted element
decided
his mat-
hidden under
had two firearms
a vio-
seemingly established
tress —facts that
correct,
entitled to
If
then he is
lation of the statute.
trial,
a new
of the indictment and
dismissal
judgement
to a
he would
be entitled
but
jury
indeed instructed
this
The
was
because,
acquittal. This is true
had
of
itself,
evidence, by
sufficient to establish
was
motion, this would
granted Collins’s
Jury
of the statute.
Instruction
a violation
legal grounds
a dismissal on
havе been
that,
of
jury
prove
a violation
told the
—that
is,
ground
requiring
a
factu
dismissal on
11.61.195(a)(1),
State had to establish
AS
of the elements
al resolution
following
only
two elements:
not amount
offense. Such
dismissal “does
First,
question
the event
oc-
acquittal, regardless of its
judgment
Anchorage and on or
at or near
curred
timing
attached thereto.” State
or the label
3,1997;
January
about
v. Martushev.3
Second,
knowingly
R. Collins
that Artie
during
State4,
commission
possessed firearm
a defen
example,
For
Steve
charged in
felony drug
offense as
judgement
post-trial
“motion for
filed
dant
I
II
the indictment.
Counts and
he
convicted of sec
acquittal” after
was
(having
abuse of a minor
ond-degree sexual
I
felony drug
offenses named Counts
age of
(1)
with a child under the
sexual relations
possessing
II
the indictment were:
trial,
affirma
hаd asserted the
(2)
At
Steve
cocaine,
maintaining a
keeping or
he
of reasonable mistake:
tive defense
storing or
dwelling
building
distribut-
reasonably
he
believed
sexu
jury instruc-
claimed
ing controlled substances.
jury
explanation
16. The
partner
older than
no further
al
tions contained
felony
In his
“during
rejected
the commission
affirmative defense.
phrase
motion,
drug
post-trial
offense”.
Steve asserted
process because the
denied due
been
jury convicted Collins
After the
statute)
(in
re
accord with
instructions
crime,
what he called a motion
filed
pre
prove this defense
quired him to
argued
acquittal”. Collins
“judgement of
claimed
of the evidence. Steve
ponderance
possession of a firearm
that mere
law, it
a matter of constitutional
as
felony
was not suffi-
of a
commission
disprove
as
government’s burden to
violation
cient
to establish
doubt.5
11.61.195(a)(1).
beyond a reasonable
Rather,
defense
argued, the
serted
App.1993).
5.See
id.
114-15.
3. 846 P.2d
(Alaska App.1994).
P.2d 110
*11
(1)
that,
attacking
supplemental
meaning
We held
because Steve was
file
briefs on
of
the
(2)
legal ground
on
did
conviction
not
the statute and
how the State’s evidence
require
of
of
resolution
the facts of the
at Collins’s trial either established or failed
pleading
was not a “motion for
of
to establish violation
the statute.
judgement
acquittal”,
granting
and the
brief,
supplemental
In its
con-
the State
preclude
his motion would not
the
State
Judge
ceded that Collins and
Souter
re-trying him:
right:
simply
required
the statute
more than
appellate
the
an
[I]f
defendant convinces
proof
possessed
that a
coсaine
adopted
court that the trial court
an erro-
simultaneously
owned firearm.
State
neous definition
the offense or misallo-
11.61.195(a)(1) required
admitted that AS
proof,
cated the burden
this conclusion proof of some nexus between the firearm and
necessarily
assumption
undermines
However,
drug
relying
offense.
on fed-
government
day
fair
its
cases,
argued
eral
the State
that the statute
court.
can not know
We
what evidence
necessarily require proof
did
presented
might
the State
[the
have
at
defendant used
the fire-
threatened
use
if it had
defendant’s] trial
known
true
[the
Rather,
arm
offense.
or that]
elements of the offense
the State
argued,
the offense could be estab-
proof
[disputed]
bore
burden
on the
proof that,
lished
because a firearm was
issue[.]
аvailable,
nearby and
“em-
defendant was
Steve,
Thus,
trol over a firearm —even State, place. According in another required by is the statute only nexus
“[t]he possession firearm] [of
one time: [of] with the point some time
must coincide at felony drug
commission aof offense.” JOUBERT, Appellant, Hurist agreement with find ourselves We prosecutor on this and the trial Judge Souter v. felony drug is Possession cocaine issue. Alaska, Appellee. STATE of felony, carrying a maxi- offense —a class C imprisonment.8 years’ penalty mum of 5 No. A-6540. the commis- firearm Possession Appeals of Alaska. Court felony drug a more offense is seri- sion of crime; felony, carrying B it is a class ous April 1999. imprison- penalty years’ of 10 maximum though wording- of AS Even ment.9
11.61.195(a)(1) interpreted could be appeal, it urged by the
fashion legislature in- unlikely quite
seems or, if receives to double the defendant
tended sentences, penalty triple the even
consecutive whenever a cocaine possession of cocaine happens gun owner.
user also statutes, interpreting it is
When interpretations that lead duty to shun
court’s agree results.10
to absurd We 11.61.195(a)(1) in unless AS nexus between the
terpreted require some the commission
possession of the firearm and offense, felony drug the statute leads penalties for run-of- inexplicably draconian drug possession
the-mill offenses. reasons, we conclude
For these 11.61.195(a)(1) a nexus requires
AS fire possession defendant’s
between a and the defendant’s commission
arm 11.71.040(d), 11.71.040(a)(3)(A), 841 P.2d AS See Millman AS AS 12.55.125(e). 11.71.150(c), pp.1 AS A 11.61.195(b), 11.61.195(a)(1), AS
9. AS 12.55.125(d).