ANTONIO N. JORDAN, Appellant,
STATE OF ALASKA, Appellee. JAMES F. LETENDRE, Appellant,
STATE OF ALASKA, Appellee
[Copyrighted Material Omitted]
Appeals from the Superior Court, Fourth Judicial District, Tok, Robert B. Downes, Judge, and Third Judicial District, Palmer, Kari Kristiansen, Judge. Trial Court No. 4TO-09-151 CR. Trial Court No. 3PA-11-1989 CR.
Margi Mock, under contract with the Public Defender Agency (for Appellant Antonio N. Jordan), Megan Webb, Assistant Public Defender (for Appellant James F. Letendre), and Quinlan Steiner, Public Defender, Anchorage (for both appellants).
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty and Craig W. Richards, Attorneys General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
The defendants in these two appeals were convicted of violating AS 11.71.040(a)(3)(F) -- i.e., possessing marijuana " [in] an aggregate weight of four ounces or more" -- after the police found marijuana on their residential properties.
Both defendants now assert that their juries should have been instructed that even if the marijuana in their possession actually weighed four ounces or more, it would be a defense to this charge if the defendant made a reasonable mistake regarding the weight of the marijuana.
(In Jordan's case, the jury received no instruction on this point. In Letendre's case, the jury was affirmatively instructed that it was irrelevant whether the defendant knew, or even reasonably should have known, that the marijuana weighed four ounces or more.)
As we explain more fully in this opinion, we agree that the juries should have been instructed that reasonable mistake as to the weight of the marijuana was a defense. Possession of less than four ounces of marijuana in one's home for personal use is protected under the right of privacy guaranteed by Article I, Section 22 of the Alaska Constitution. Ravin v. State, 537 P.2d 494 (Alaska 1975); Noy v. State, 83 P.3d 538, 542-43 (Alaska App. 2003). We accordingly conclude that when a defendant is prosecuted for possessing four ounces or more of marijuana in their home, the State must prove that the defendant was at least negligent regarding the circumstance that the amount of marijuana equaled or exceeded four ounces.
But as we also explain in this opinion, we conclude that this error was harmless beyond a reasonable doubt in both of the defendants' cases. We therefore affirm both defendants' convictions for possessing four ounces or more of marijuana.
Jordan's case presents an additional issue. The jury found him guilty of two offenses: possessing four ounces or more of marijuana, and also maintaining a building (his greenhouse and cabin) to keep the marijuana. Jordan should not have received a separate conviction for this latter offense. See Rofkar v. State, 305 P.3d 356, 358-59 (Alaska App. 2013). We therefore direct the superior court to enter a single, merged conviction based on the jury's two verdicts.
State v. Jordan:
The Alaska State Troopers searched Antonio N.
Jordan's property and discovered 15 marijuana plants growing in his greenhouse.
They also found an extensive marijuana growing space on the upper floor of his
cabin. The troopers dried the marijuana plants, then separated the buds and
leaves. The dried buds and leaves weighed a little over a pound and a half
(approximately 25.2 ounces).
Jordan was indicted on two counts of fourth-degree controlled substance misconduct. The first count charged Jordan with possessing four ounces or more of marijuana. The second count charged Jordan with knowingly maintaining a building that was used for keeping or distributing controlled substances in furtherance of a felony drug offense. This " maintaining a building" count was based on the fact that Jordan grew and stored the marijuana in buildings on his property.
A jury found Jordan guilty of both these offenses.
State v. Letendre:
The police found several marijuana plants growing in James F. Letendre's residence. They also found processed marijuana ( i.e., marijuana that had been harvested and dried).
The marijuana plants weighed almost thirteen pounds when they were seized. According to the testimony at Letendre's trial, these
plants would have yielded a little over two pounds of usable marijuana after the plants were harvested and dried.
The additional, already-processed marijuana found at Letendre's residence weighed 1.88 pounds.
Letendre was charged with three offenses: possessing one ounce or more of marijuana with intent to distribute it;  possessing four ounces or more of marijuana; and maintaining a building for keeping or distributing controlled substances in furtherance of a felony drug offense. (This " maintaining a building" count was based on the fact that Letendre grew and stored the marijuana in his home.)
Letendre claimed that all of this marijuana was for his personal use. The jury acquitted Letendre of possessing the marijuana for distribution, and also acquitted him of the " maintaining a building" charge, but the jury convicted Letendre of possessing four ounces or more of marijuana.
The issue presented in these appeals
The main question presented in these appeals is whether, when the State charges someone with possessing four ounces or more of marijuana in their home for personal use, the State is required to prove that the defendant acted with a culpable mental state regarding the circumstance that the marijuana in their possession amounted to four ounces or more.
Jordan and Letendre argue that, in such cases, the State is required to prove that the defendant was at least reckless, as defined in AS 11.81.900(a)(3), regarding the circumstance that the marijuana weighed four ounces or more.
For its part, the State argues that no culpable mental state need be proved with respect to the weight of the marijuana. The State takes the position that when a defendant is charged with possessing four ounces or more of marijuana, the State must prove that the defendant " knowingly" possessed the marijuana, but the defendant is strictly liable with regard to whether the marijuana equals or exceeds four ounces.
As we will explain, we agree with the State in part. When a defendant is charged with possessing four ounces or more of marijuana in a place other than the defendant's home, the defendant is strictly liable with regard to the amount of marijuana in their possession. The situation is different, however, for defendants who are charged with possessing marijuana in their homes.
The privacy clause of the Alaska Constitution -- Article I, Section 22 -- limits the government's authority to prosecute people for possession of marijuana in their homes when the marijuana is for personal use. Ravin v. State, 537 P.2d 494 (Alaska 1975). In Noy v. State, 83 P.3d 538, 542-43 (Alaska App. 2003), this Court held that this constitutional right of privacy covers personal possession of marijuana in amounts less than four ounces.
Because of this, we hold that when a defendant is prosecuted for possessing four ounces or more of marijuana for personal use in their home, the State must prove that the defendant was at least negligent regarding the circumstance that the amount of marijuana equaled or exceeded four ounces.
We will now explain in detail how we reached this conclusion.
The culpable mental state that the government must prove when a person is charged under AS 11.71.040(a)(3)(F) with possessing four ounces or more of marijuana in their home
Both Jordan and Letendre were charged with fourth-degree controlled substance misconduct under AS 11.71.040(a)(3)(F). This statute declares that a person commits a class C felony if the person " possesses ... one or more preparations, compounds, mixtures, or substances of an aggregate weight of four ounces or more containing [marijuana]."
The primary issue raised in this appeal is whether, when a defendant is charged with violating this ...