Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Trial Court No. 3PA-07-1322 Cr
The opinion of the court was delivered by: Mannheimer, Judge.
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections at appellate.courts.state.ak.us
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 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). *fn1
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 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.
Wiglesworth, along with three confederates (Jess Klein, Karri Embach, and Anafesa Galaktionoff), engaged in the manufacture of methamphetamine using the "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 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 ...