Opinion
Court of Appeals No. A-10408.
December 8, 2010.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-08-408 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Marly F. Edenso was convicted of two counts of attempted possession of a controlled substance. She appeals, contending that there was insufficient evidence to support her convictions. Specifically, she argues that the evidence did not show that she made a "substantial step" toward the commission of possession of controlled substances. For the reasons set out here, w e disagree with Edenso and therefore affirm her convictions.
AS 11.71.040(a)(3)(A), AS 11.71.050(a)(2)(A), and AS 11.31.100(a).
Facts and proceedings
In May 2008 the United States Postal Service intercepted a suspicious package addressed to Marly Edenso's Ketchikan residence. After the package was intercepted, Postal Inspector Andrea Avery obtained a search warrant and opened and searched the package. She found among some innocuous items two unmarked pill bottles. The bottles contained approximately one hundred pills. The state crime lab found that forty-nine pills contained oxycodone and that fifty pills contained dihydrocodeine. Oxycodone and dihydrocodeine are both controlled substances.
The oxycodone pills were Percocet, and the dihydrocodeine pills were Anexia or Vicodin.
AS 11.71.140(b)(1)(N) (oxycodone); AS 11.71.140(c)(19) (dihydrocodeine); AS 11.71.160(e) and AS 11.71.180(b)(2) (compounds or mixtures with a limited quantity of dihydrocodeine).
After Avery executed her search warrant, she contacted Ketchikan Police Investigator Andrew Berntson and informed him about the intercepted package and its contents. Berntson obtained a search warrant for Edenso's residence. When police searched her residence, they found a handwritten note showing the Postal Service tracking number for the package that Avery had intercepted. This note also had the phone number for the automated system for tracking parcels and a notation about the date the package had reportedly arrived in Ketchikan. The police also found a laptop computer and two printed "Track and Confirm" pages showing that someone had checked the package's status on the post office's website.
The day after police searched Edenso's residence, Berntson interviewed Edenso. According to Bernston's testimony, when asked about the pills, Edenso said that she had asked Michael Vandal to send her some pain killers. She explained that Vandal had told her that he had access to pain killers and he would get them all the time. She said that the pills were intended for her and that she did not intend to sell them to others. She also told police that she had a prescription for oxycodone already, and knew that getting pain killers from Vandal was not appropriate. She used prescription pain killers because of medical issues related to her hip. She admitted that she had tracked the package and had called the post office to determine its whereabouts.
Edenso was tried by a jury and found guilty of one count of attempted fourth-degree misconduct for attempting to possess oxycodone and of one count of attempted fifth-degree misconduct for attempting to possess dihydrocodeine. This appeal followed.
AS 11.71.040(a)(3)(A) and AS 11.71.050(a)(2)(A), respectively.
The sufficiency of the evidence
Edenso contends that there was insufficient evidence proving that she took a substantial step towards the commission of the offense. She asserts that her conduct — that is, asking Vandal to obtain some pain killers for her — was "closer to mere preparation than to a completed offense." Edenso claims that "mere solicitation is insufficient to constitute an attempt," and she argues that, at best, her conduct was only a solicitation. Edenso's "substantial step"
Under AS 11.31.100(a), "[a] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime." In order to constitute a "substantial step," a person's conduct must go beyond mere preparation. In Avila v. State, we explained that to qualify as a "substantial step," the defendant's act must be "strongly corroborative of the actor's criminal purpose." Soon after Avila was decided, we reiterated that Alaska's attempt statute "is intended to encompass a wide-range of acts beyond mere preparation."
See 1978 Senate Journal Supp. 47 at 5 (June 12) (citing the Alaska Criminal Code Revision, Tentative Draft, Part 2 at 73 (February 1977)).
22 P.3d 890 (Alaska App. 2001).
Id. at 893 (citing the Alaska Criminal Code Revision, Tentative Draft, Part 2 at 73 (February 1977)).
Beatty v. State, 52 P.3d 752, 755 (Alaska App. 2002).
In Avila, the defendant, who was incarcerated, asked his girlfriend to deliver heroin to him in prison. On appeal, he argued that his phone calls to his girlfriend amounted to no more than solicitations to deliver heroin to him. But we held that the phone calls were part of, or resulted in, the "substantial step" in Avila's attempt to possess heroin with intent to deliver.
Id.
Id.
We explained that under AS 11.16.110, when Avila solicited his girlfriend to deliver heroin to him in prison, "Avila became responsible for any of [the girlfriend's] conduct that might constitute a substantial step toward the accomplishment of that crime." Alaska Statute 11.16.110 provides, in pertinent part, that "a person is legally accountable for the conduct of another constituting an offense if . . . with intent to promote or facilitate the commission of the offense, the person . . . solicits the other to commit the offense." Consequently, Avila could be convicted of attempt if, after the solicitation, either he or his girlfriend "performed a substantial step toward the commission of the intended crime."
Id.
Id.
We concluded that Avila was guilty of the attempt because his girlfriend, as a result of Avila's solicitation, contacted a third party to obtain money to be used to purchase heroin, and then sought — albeit unsuccessfully — a heroin dealer to complete the purchase. We held that a reasonable jury "could properly conclude that [the girlfriend's] conduct amounted to a `substantial step' toward accomplishing a delivery of heroin to Avila."
Id. at 894.
Id.
Like Avila, once Edenso solicited another person to obtain controlled substances for her, she became responsible for any of that person's conduct that might constitute a substantial step toward the accomplishment of the crime. At trial, the evidence showed that Edenso believed that Vandal could obtain prescription pain killers and, aware that it was illegal to do so, asked him to send her some.
Although there was no evidence setting out Vandal's specific efforts to secure the pain killers, he was ultimately successful. He managed to obtain a significant amount of controlled substances — forty-nine pills containing oxycodone and fifty pills containing dihydrocodeine — and then sent them to Edenso. He packaged these pills and mailed them to Edenso's home, and ensured that Edenso had the information necessary to allow her to track the package. We conclude that a reasonable jury could properly find that Vandal's conduct, prompted by Edenso's request, was a "substantial step" toward accomplishing Edenso's attempt to possess controlled substances.
See id. at 894; Braham v. State, 571 P.2d 631, 637 (Alaska 1977).
In addition, the jury heard that Edenso was already using pain killers because of a medical issue involving her hip, and that she intended to get the pain killers for her own use. The jury also knew that Edenso actively tracked the w hereabouts of the package, knew when the package should have arrived in Ketchikan, and that she called the post office to determine the package's w hereabouts when the package w as not delivered. This evidence was adequate to support a conclusion by a reasonable mind that Edenso was guilty beyond a reasonable doubt of attempting to possess controlled substances. Conclusion
Davidson v. State, 975 P.2d 67, 68 (Alaska App. 1999) (citing O'Dell v. Anchorage, 573 P.2d 1381, 1383 (Alaska 1978); Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990)).
The district court's judgment is AFFIRMED.