Dawson v. StateDawson v. State
OPINION
Franklin E. Dawson was convicted by a jury of two counts of delivering cocaine, in violation of
FACTS
On five occasions during November and December, 1992, an undercover police officer purchased cocaine from Dawson and/or Dawson’s wife. The first sale occurred in an Anchorage apartment on 26th Avenue that the Dawsons rented and occupied. On that occasion Dawson allowed the undercover officer into the apartment and was present during the sale, but the sale itself was transacted by Dawson’s wife. After the first sale, Dawson and his wife moved to a new apartment, on Spenard Road. The remaining four sales occurred there. Dawson was in the apartment during each transaction: on one occasion he handed the cocaine to the undercover officer; on another occasion the officer handed his payment to Dawson but received the cocaine from Dawson’s wife; and on the two remaining occasions Dawson was merely present while his wife delivered the drugs and was paid.
The state charged Dawson with one count of delivering cocaine for each of the two incidents in which he actively participated. The state also charged him with five counts of maintaining a dwelling used for the keeping or distribution of cocaine — one count for each of the five sales that occurred at Dawson’s two apartments. At trial, Dawson unsuccessfully moved for judgments of acquittal on the maintaining charges. He argued that Alaska’s statutory prohibition against maintaining a dwelling used for the keeping or distribution of controlled substances — -Alaska’s crack-house statute — applies only to dwellings that are used exclusively for purposes of keeping or distributing controlled substances. Alternatively, Dawson argued that the crime of maintaining is a continuing offense and that, for this reason, he could not be convicted separately for each sale that occurred at his apartments. On appeal, Dawson renews these arguments.
DISCUSSION
1. Interpretation of Alaska’s Crack-House Statute
In order to resolve Dawson’s claim of insufficient evidence, we must first determine the precise nature of the conduct prohibited by Alaska’s crack-house statute. In relevant part,
This provision has never been interpreted by an appellate court in Alaska;
1
it was adopted by the Alaska legislature in 1982 as part of a comprehensive revision of Alaska’s drug laws. As with the balance of Alaska’s revised drug laws, the crack-house provision derives from the Uniform Controlled Substances Act (UCSA).
See
ch. 45, § 1, SLA 1982. Similar provisions, also patterned on the UCSA, have been adopted and enforced by the federal government and in numerous states.
See generally
Enfile F. Short, Annotation,
Permitting Unlawful Use of Narcotics in Private Home as Criminal Offense,
a. Elements Relating to Conduct
A eommonsense reading of
Federal cases interpreting
The federal cases likewise appear to agree that, to be covered by the federal statute, a dwelling or other building need not be used for the exclusive, or even the primary purpose of storing or distributing drugs; as long as such use is a substantial purpose, the federal prohibition applies.
See, e.g., United States v. Tamez,
Nevertheless, the federal cases also recognize that the federal statute describes a continuing offense — that an isolated or incidental act of possession or sale in a building will not fall within the federal statute. In
United States v. Claris,
This view accords with the consensus of courts interpreting UCSA-based state crack-house statutes similar to Alaska’s. These courts have uniformly adopted the position that the prosecution is required to prove, and the jury to find, “something more than a single, isolated instance of the proscribed activity.”
Barnes v. State,
The terminology of Alaska’s crack-house provision similarly suggests the need for a finding of continuity. The statute, in broad terms, prohibits “keeping” or “maintaining” various types of property for drug-related activities; neither “keep” nor “maintain” is defined. In their ordinary meaning, both words strongly imply an element of continuity or duration.
4
We conclude that the plain meaning of “keep” and “maintain” should govern the application of Alaska’s crack-house statute. In particular, we conclude that the statute must be construed to require a finding of continuity and to preclude conviction for an isolated incident of possession or distribution. In keeping with other jurisdictions, however, we further conclude that the existence of continuity presents a factual issue to be decided in light of the totality of the facts in each case: “there is no inflexible rule that evidence found only on a single occasion cannot be sufficient to show a crime of a continuing nature.”
Barnes,
In another respect, however, applying the plain meaning of “keep” and “maintain” must be avoided. The common meaning of these words might include activities such as routine maintenance or upkeep of property; but the context in which these words are used in
Illustrative of the point is
State v. Pyritz,
A final observation to be made with regard to the actus reus elements of the crack-house statute pertains to the type of drug-related activities that must occur on the property that is kept or maintained by the accused. The language of the statute specifies that the property must be used “for keeping or distributing controlled substances in violation of a felony offense under this chapter[.]” This simply requires that the property be used for the purpose of keeping or distributing drugs in a manner that amounts to a felony under Alaska’s drug laws; use for purposes of committing misdemeanor-grade controlled substance offenses is excluded from the language of the crack-house statute.
b. Elements Relating to Culpable Mental State
The culpable mental state requirement of Alaska’s crack-house statute must next be considered. The culpable mental state specified in the crack-house statute is “knowingly.”
Our conclusion is reinforced by the prevailing federal interpretation of
While liability for remaining “deliberately ignorant” of illegal activity might at first blush suggest a culpable mental state re
a person acts “knowingly” with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist[.]
In our view, one who remains “deliberately ignorant of [illegal activity],”
Banks,
Under the Code, knowledge requires an awareness on the part of the defendant that his conduct is of the nature described by the statute defining the offense or that the circumstances described by the statute exist. The definition also covers the situation where a person deliberately avoids acquiring knowledge by closing his eyes (sometimes referred to as “wilful blindness”) by providing that “when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless he actually believes it does not exist.”
Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 141, 1978 Senate Journal 1399.
Hence, we conclude that, under Alaska’s crack-house statute, the accused must act knowingly both with respect to the proscribed conduct of keeping or maintaining property that is used for the purpose of illegal storage or distribution of controlled substances and with respect to the existence of the illegal use itself. We emphasize, however, that when the accused keeps or maintains property and allows others to use it for the purpose of drug-related activities, the state need not prove that the accused acted intentionally.
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That is, the accused need not share the illegal purpose of those who carry on the drug-related activity, but need only know of it — “the ‘purpose’ may be that of others.”
Banks,
c. Summary of Elements
To summarize, we conclude that, to establish a violation of
2. Application of the Crack-House Statute to Dawson’s Case
We now consider Dawson’s claim of insufficient evidence in light of this interpretation. 9 Dawson’s primary basis for claiming insufficient evidence — that his apartments were not exclusively used for drug trafficking — is meritless. As we have indicated, exclusive use is not required.
Viewing the totality of the evidence in the light most favorable to the state, sufficient evidence was presented to allow reasonable jurors to conclude that Dawson exercised control over the apartments that he and his wife rented and lived in, and that he rented the apartments to be used for the purpose of keeping and distributing of cocaine — conduct amounting to a felony.
10
Moreover, because there was ample evidence of Dawson’s personal participation in two cocaine sales, the jury could certainly find that Dawson acted knowingly both with respect to maintaining the apartments and with respect to the illegal activities that occurred there. Since the evidence showed a series of sales occurring over a two-month span, it was also sufficient to support a finding of continuous drug-related activity. Accordingly, sufficient evidence was presented at trial to support a finding that Dawson violated
Nevertheless, because the crack-house statute defines a continuing offense, and since the evidence in this ease establishes at most two separate acts of keeping or maintaining a dwelling,
11
Dawson’s guilt of five separate violations of
That the evidence plainly would have supported a finding of continuing, purposive use cannot cure the problem created by the jury’s failure to decide the issue. Despite the theoretical sufficiency of the evidence to support Dawson’s conviction for two violations of the crack-house statute, the verdicts of conviction on the crack-house violations do not represent the jury’s determination of all of the necessary elements of the offense. Under the circumstances, even though Dawson failed to object to the jury instruction covering the elements of the offense, we conclude that allowing Dawson’s convictions to stand on even two of the crack-house counts would amount to plain error. Dawson’s convictions on the five crack-house counts must be vacated.
Our ruling leaves intact Dawson’s convictions and sentences for delivery of cocaine; we must consider Ms sentencing arguments relating to those counts.
12
Dawson claims that, because he is a first felony offender, Ms three-year sentence for delivery of cocaine is excessive. However, delivery of cocaine constitutes misconduct involving a controlled substance in the third degree; as such, the offense is a class B felony and is punishable by a maximum term of ten years and by a second offense presumptive term of four years.
Dawson also challenges as unwarranted the special condition of probation that forbids him from having any contact with his wife unless the contact is approved by his probation officer. Dawson argues that to require all contact with his wife to be supervised or approved by a probation officer is a “virtual annulment of his marriage.”
In the present case, the sentencing court evidently first decided to restrict Dawson’s contact with his wife because the court had been informed that the Dawsons were separated and contemplating divorce. Nevertheless, when informed that the Dawsons’ marriage remamed intact, the court declined to rescind the restriction. The court found the restriction necessary because Dawson’s wife had been involved equally in dealing crack with Dawson, and the court had no information as to the extent of her substance abuse problem or as to her prospects for rehabilitation.
In
Thomas v. State,
[C]onditions of probation must be “reasonably related to the rehabilitation of the offender and the protection of the public and ... not unduly restrictive of liberty.” Roman v. State,570 P.2d 1235 ,1240 (Alaska 1977); Edison v. State,709 P.2d 510 , 511 (Alaska App.1985). Conditions wMch restrict constitutional rights are subject to special scrutiny to determine whether the restriction serves the goals of rehabilitation of the offender and protection of the public. Roman,570 P.2d at 1241 .
A condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association and, under
Thomas,
must be subjected to special scrutiny. While discouraging a probationer from associating with former partners in crime is obviously related to the goal of rehabilitation, precluding association between marital partners is just as obviously an extreme restriction of liberty, even when the marital partners were once partners in crime. In certain types of eases, such as cases involving domestic violence, limiting marital association would plainly be defensible.
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In any type of case, it is conceivable that such a limitation might be justified by case-specific circumstances demonstrating actual necessity and the lack of less
Here, the sentencing court did not question the existence of a bona fide marital relationship. 14 Other special conditions of probation imposed by the court required Dawson to refrain from using and possessing all controlled substances, to submit to drug testing when asked by his probation officer, to participate in substance abuse treatment if deemed necessary, to submit to substance abuse evaluation and comply with all recommendations, and not to have any contact with codefendants other than his wife. The court did not specify why it considered these additional restrictions to be insufficient to address its concerns for Dawson’s success as a probationer. Finally, the court made no apparent effort to tailor the scope of the marital association restriction to the specific circumstances of Dawson’s case. Instead, the disputed condition delegates to Dawson’s probation officer unconditional and unlimited authority to regulate Dawson’s marital relationship.
We are unprepared to say that a narrower, better tailored, and more fully explained restriction would not be justified in Dawson’s case. But we conclude that, as imposed, the challenged condition is unduly restrictive of liberty and cannot withstand scrutiny. Accordingly, the condition must be vacated. Upon remand, the superior court may, in its discretion, consider the appropriateness of a more limited special condition.
CONCLUSION
Dawson’s convictions for misconduct involving a controlled substance in the third degree are AFFIRMED. Except as to the special condition of probation restricting marital contact, his sentences for these offenses are also AFFIRMED. Dawson’s convictions for misconduct involving a controlled substance in the fourth degree are REVERSED. This case is REMANDED for further proceedings consistent herewith.
Notes
. In
Davis v. State,
. Although both parties in this case dispute the meaning and application of
.
. "[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”
Perrin v. United States,
1. To continue: carry on 2. To preserve or keep in a given existing condition, as of efficiency or good repair 3. a. To provide for b. To keep in existence: sustain 4. To defend, as against danger or attack 5. To declare to be true: affirm[.]
The same dictionary defines "keep” in relevant part:
1. To retain possession of 2. To have as a supply 3. To provide with maintenance and support 4. To put customarily 5. a. To supply with room and board for a fee b. To raise 6. To maintain for use or service 7. To manage, tend, or have charge of 8. To preserve 9. To cause to continue in a given state or course of action 10. a. To maintain records in b. To enter (data) in a book 11. a. To detain b. To restrain c. To refrain from divulging d. To save in reserve 12. To maintain 13. To adhere to: fulfill 14. To celebrate: observe.
Id. at 662.
. The court in
Pyritz
further made it clear, however, that permission may be given by implied consent, and that express consent or authorization need not be shown. To make this point, the court relied on a definition of "permit” adopted in a 1921 Oregon Supreme Court case,
Lemery v. Leonard,
. When the accused maintains the property and is also the one who uses it illegally, then this distinction between knowing and intentional conduct becomes superfluous, since an accused person who maintains property and personally uses it for drug-related activities will always act intentionally with respect to both the proscribed use and the conduct of maintaining the properly.
. A useful illustration of this distinction is the disparate manner in which the federal courts interpret subsections (a)(1) and (a)(2) of
.We use the word "permits” in this context in an ordinary and commonsense manner to mean allowing by express or tacit consent, or by a failure to take steps to hinder or prevent when such steps are available.
.In reviewing a claim of insufficient evidence, we must consider the evidence and the inferences to be drawn from it in the light most favorable to the state and determine if "fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt.”
Pavlik v. State,
.
Compare, e.g., Bridges v. State,
.
Cf. United States v. Cooper,
. Given our reversal of the crack-house counts, we need not consider Dawson’s remaining arguments relating to those offenses. We likewise need not address Dawson's argument that double jeopardy bars consecutive sentencing on the crack-house and delivery of cocaine charges. Dawson has not challenged his convictions for delivery of cocaine, only his sentence. Dawson also challenges the crack-house statute on equal protection grounds. To the extent his challenge is not based on a misinterpretation of the statutory elements, we find the challenge meritless.
.
See, e.g., State v. Gilkey,
.
Cf. United States v. Bortels,