Opinion
Court of Appeals No. A-10674 Trial Court No. 1KE-09-282 CR No. 5853
05-30-2012
NEELY C. HUMPHERVILLE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Contract Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor Stephens, Judge.
Appearances: Jane B. Martinez, Contract Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Neely C. Humpherville contacted Jennifer Kucera and told her that she would give her Ecstasy, which is a controlled substance, to pay off a debt. Kucera informed the police, who arrested Humpherville and found pills which looked like Ecstasy in her possession. The State initially charged Humpherville with misconduct involving a controlled substance in the third degree for possessing Ecstasy with the intent to deliver it. But when the State had the pills tested, the pills turned out to be mimic Ecstasy, which is not a controlled substance under Alaska law. Consequently, the State charged Humpherville with attempted misconduct involving a controlled substance in the third degree. The State's theory was that Humpherville believed that the pills that she intended to transfer were the controlled substance. A grand jury indicted Humpherville on this charge.
AS 11.71.030(a)(1).
AS 11.31.100, AS 11.71.030(a)(1).
At trial, Humpherville defended on the ground that she knew that the pills she possessed were not a controlled substance. She testified that she had purchased the pills in question from a Canadian pharmacy without a prescription. (Mimic Ecstasy is not a controlled substance in Canada.) She stated that she was using the pills as a dietary supplement to help her lose weight. She stated that she knew the pills were not Ecstasy and testified that she had not represented to Kucera that they were. The trial jury convicted Humpherville nevertheless.
On appeal, Humpherville argues that the State presented insufficient evidence at the grand jury proceeding to allow the grand jury to conclude that she thought she possessed the controlled version of Ecstasy. She also argues that the prosecutor erroneously instructed the grand jury and that Superior Court Judge Trevor Stephens improperly instructed the trial jury. We affirm Humpherville's conviction.
Factual and procedural background
Humpherville's main point on appeal is her contention that the State presented insufficient evidence at the grand jury proceeding to show that she thought she possessed, and intended to possess, the controlled version of Ecstasy. She makes no similar claim concerning the evidence presented at trial. Consequently, we will set out the grand jury testimony.
Two witnesses testified at the grand jury proceeding, Ryan Hanis and Stephen Palmer. Officer Hanis worked in the drug investigation unit of the Ketchikan Police Department. Mr. Palmer worked for the State crime laboratory as a forensic scientist.
Officer Hanis testified that on the afternoon of April 16, 2009, he was contacted by Jennifer Kucera, who told him that Humpherville "was trying to give her drugs." Officer Hanis told the grand jury that Kucera "had worked with us in the past, with other drug cases." Officer Hanis stated that Kucera got nothing in return for her involvement with Humpherville's case.
Officer Hanis testified that Kucera told him that Humpherville "[was] bringing in some drugs from Prince Rupert on the ferry." He said Kucera told him that "Ms. Humpherville went down to Prince Rupert for a basketball tournament, and she was going to pick up some Ecstasy down there, bring it back." He added that Kucera told him Humpherville "had called her on her way back on the ferry saying she'd give her a pill or two of Ecstasy, because she owed her money for something."
Officer Hanis explored with Kucera the basis for her belief that Humpherville's pills were Ecstasy: "I asked her why she thought it was Ecstasy and [she] said that Ms. Humpherville had texted her back that it was E, which is a street word for Ecstasy."
Kucera, Officer Hanis explained, then called Humpherville. Kucera put her cell phone on speaker phone so that Officer Hanis, who was present, could hear their conversation. Officer Hanis stated that Humpherville said that she had "a good hook up" in Prince Rupert for "E, and also meth and coke." Humpherville said that she would sell the Ecstasy for $40. Kucera asked Humpherville if she could pick up $200 worth. Humpherville stated that she had enough to do that and would give the drug to Kucera because she owed Kucera some money.
Officer Hanis then applied for a warrant to search Humpherville and her possessions. He met Humpherville outside the Ketchikan ferry terminal and executed the search warrant. He searched her bags at the police station. Officers found fifty-four-and-one-half pills inside her bags. Officer Hanis told the grand jury that these were "Ecstasy pills." He stated that they were yellow and shaped like Bart Simpson's head. Officer Hanis testified that he thought the pills were Ecstasy because Ecstasy pills "always use cartoon characters" or resemble children's vitamins.
Officer Hanis arrested Humpherville for possessing Ecstasy. He sent the pills to the State crime lab. He explained to the grand jury that the pills turned out not to actually contain the ingredient that makes Ecstasy a controlled substance. He explained that he was familiar with mimic Ecstasy. Mimic Ecstasy is supposed to give a high which is similar to the controlled substance. He testified that mimic Ecstasy is illegal under federal law but is not a controlled substance in Canada or Alaska.
The second witness at the grand jury was Stephen Palmer, a State forensic scientist. Palmer testified that the pills that Humpherville possessed "were not pharmaceutical tablets. They were illicitly produced tablets." He stated that he had seen such Bart Simpson-shaped pills before and that they were "generally the kind of rave pills that you would see, also known as Ecstasy."
Ecstasy, Mr. Palmer explained, contains methylenedioxymethamphetamine, or MDMA. Humpherville's tablets did not contain MDMA. They instead contained BZP (benzylpiperazine), TFMPP (trifluromethylphenylpiperazine), caffeine, and dextromethorphan. None of these, Mr. Palmer stated, is a controlled substance under Alaska law. At least one of them, BZP, is regulated under federal law.
This is an accurate statement. See AS 11.71.140-. 190 (listing controlled substance schedules).
21 C.F.R. § 1308.11 (listing BZP as a Schedule I controlled substance).
Mr. Palmer stated that pills with these ingredients give a high that is "very similar to the [high given by] MDMA." He stated that such pills "could be sold as Ecstasy." Based upon this evidence, the grand jury indicted Humpherville.
Humpherville filed a motion to dismiss the indictment on the ground that the State did not present sufficient evidence that she intended to possess the controlled version of Ecstasy. Judge Stephens denied the motion. Humpherville appeals.
Why we conclude that the evidence before the grand jury was sufficient to support the indictment
A grand jury must indict a defendant "when all the evidence taken together, if unexplained or uncontradicted, would warrant conviction of the defendant." On review, "every legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment."
State v. Williams, 855 P.2d 1337, 1346 (Alaska App. 1993).
The elements of misconduct involving a controlled substance in the third degree are (1) possession of any amount of a statutorily defined controlled substance with (2) intent to manufacture or deliver this substance. MDMA is defined by statute as a schedule IIA controlled substance. The elements of an attempt to commit a crime are (3) conduct "constitut[ing] a substantial step toward the commission of that crime" with (4) intent to commit a crime. Finally, the attempt statute provides that factual impossibility is no defense to attempt:
AS 11.71.030(a)(1).
AS 11.71.150(b)(20).
AS 11.31.100(a).
[I]t is not a defense that it was factually or legally impossible to commit the crime which was the object of the attempt if the conduct engaged in by the defendant would be a crime had the circumstances been as the defendant believed them to be.
AS 11.31.100(b).
Of these four elements, the only real dispute concerns the first, whether Humpherville intended to possess a statutorily defined controlled substance. As Judge Stephens observed in denying the motion to dismiss the indictment, there was sufficient evidence presented to the grand jury that Humpherville intended to transfer the controlled version of Ecstasy. Humpherville's statements to Kucera, which were overheard by Officer Hanis, implied that she had obtained the Ecstasy from a drug dealer in Prince Rupert who also could supply "meth and coke." The pills looked like illegal Ecstasy, and the grand jury could reasonably infer from the evidence that Humpherville believed the drugs were the illegal form of Ecstasy.
We agree that this evidence, if unexplained or uncontradicted, was sufficient to support the indictment. Of course, Humpherville could argue, and did argue at trial, that she was aware that the pills she possessed were not a controlled substance. But the jury rejected her testimony. And Humpherville has not argued that the evidence which the State presented at trial was insufficient to support a conviction.
Humpherville's other issues
Humpherville raises two other issues. First, Humpherville argues that at the grand jury, the prosecutor erroneously instructed the jury on the elements of the offense. But Humpherville did not preserve this issue for appeal. In her motion to dismiss the indictment, Humpherville argued that the State presented insufficient evidence to support the inference that she intended to deliver a controlled substance. She only raised the issue of the prosecutor's instructions to the grand jury briefly in her reply memorandum. Judge Stephens never made a ruling on this issue, and Humpherville never requested a ruling.
Because Humpherville raised this issue for the first time in a reply memorandum, Judge Stephens properly ignored this argument in issuing his ruling. In addition, we have consistently held that to properly preserve an issue for appeal, a party must obtain a ruling from the trial court. In particular, any defect in the indictment must be brought to the attention of and ruled upon by the trial court or it is waived. We accordingly conclude that this issue is not preserved for appeal.
See, e.g., Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 611 (Alaska 1998).
E.g., Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) ("To preserve an issue for appeal, an appellant must obtain an adverse ruling.").
See State v. Semancik, 99 P.3d 538, 542-43 (Alaska 2004).
Humpherville also argues that the instructions which Judge Stephens gave the trial jury were insufficient to make it clear that the State had to prove beyond a reasonable doubt that Humpherville believed that she possessed the illegal version of Ecstasy, i.e., the version containing the schedule IIA controlled substance MDMA. She argues that the jury could have convicted her even if the jurors thought that Humpherville knew she possessed only mimic Ecstasy. She argues that, under the instructions given, the jury was not required to find an element of the charged offense, that she intended to possess a controlled substance.
Humpherville seems to argue that the central elements instruction, Instruction No. 13, needed to explain this requirement, and that the instructions were deficient because this information was not provided within Instruction No. 13. But "[j]ury instructions are to be analyzed as a whole, rather than in isolation."
Lynden, Inc. v. Walker, 30 P.3d 609, 617 (Alaska 2001).
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Our review of the record convinces us that the instructions, taken as a whole, correctly informed the jury of the essential elements of the crime charged. Instruction No. 13 stated, in part, that the State had to prove that "[t]he defendant intended to possess Ecstasy." Instruction No. 13 used the term "Ecstasy" throughout in setting forth the elements of the crime. The term "Ecstasy" was subsequently defined in another instruction, Instruction No. 16, as meaning "a pill containing 3,4 methylenedioxymethamphetamine (MDMA)." This same instruction told the jury that "'Ecstasy' does not include mimic or pseudo ecstasy pills, or any other pills, that do not contain MDMA."
Read together, the instructions informed the jury that the State was required to prove Humpherville thought she possessed and intended to possess the controlled version of Ecstasy.
Conclusion
The judgment of the superior court is AFFIRMED. MANNHEIMER, Judge, concurring.
I agree with my colleagues that Humpherville's grand jury indictment should be upheld, but not for the reasons stated in the lead opinion.
The underlying problem in this case arises from the fact that there are two different types of drugs which are known, in street parlance, as "Ecstacy". There is a controlled-substance version of the drug (a version containing MDMA), and there is a non-controlled-substance version of the drug — a version containing various stimulating substances, including caffeine, that apparently produce a "high" similar to the controlled-substance version. The pills in Humpherville's possession were of this latter sort.
The grand jury evidence in this case clearly established that Humpherville told her friend, Kucera, that she would be bringing her "Ecstacy". Moreover, Humpherville told Kucera that she had obtained this Ecstacy from a drug dealer who also sold methamphetamine and cocaine. And the pills in Humpherville's possession were contained in a plastic bag, and they were shaped like the head of a cartoon character. The foregoing evidence was sufficient, if believed, to warrant the conclusion that Humpherville wanted Kucera to believe that the pills Humpherville was bringing to Ketchikan were the controlled-substance version of Ecstacy.
But the question here is not what Humpherville wanted Kucera to believe, but rather what Humpherville believed herself.
If Humpherville herself believed, mistakenly, that the pills in her possession were the controlled-substance version of Ecstacy, then she was properly indicted for attempted third-degree controlled substance misconduct: that is, an attempt to possess a controlled substance for purposes of sale or other distribution.
But if Humpherville believed that the pills in her possession were the non-controlled-substance version of Ecstacy, then Humpherville could not properly be indicted for attempted third-degree controlled substance misconduct.
Instead, because the pills in Humpherville's possession contained caffeine, and because both the appearance of the pills and Humpherville's representations concerning the pills would lead a reasonable person to believe that the pills were the controlled-substance variety of Ecstacy, Humpherville's offense would be the crime defined in AS 11.73.010 — possession of an imitation controlled substance with intent to deliver. (See the definition of "imitation controlled substance" codified in AS 11.73.-099(3).)
The difficult question here is whether the grand jury evidence gave the grand jurors any rational basis for deciding that the first of these possibilities was more likely than the second.
This Court has repeatedly stated that a grand jury can not properly return an indictment "unless [the grand jurors are] satisfied that the evidence presented, if unexplained or uncontradicted, establishes a probability of the defendant's guilt". State v. Case, 928 P.2d 1239, 1242 (Alaska App. 1996) (Mannheimer, J., concurring), citing Sheldon v. State, 796 P.2d 831, 836 (Alaska App. 1990); see also Bangs v. State, 663 P.2d 981, 982 (Alaska App. 1983).
If "probability of guilt" means "more likely guilty than not", then I am not sure that the grand jury evidence in Humpherville's case meets this test. The question was whether (1) Humpherville personally believed that the pills in her possession were the controlled-substance version of Ecstacy, as opposed to (2) Humpherville knew that the pills were imitation, but wanted Kucera to believe that the pills were the controlled-substance version of Ecstacy. There seems to be little in the grand jury record that would allow the grand jurors to rationally conclude that the first of these possibilities was more likely than the second.
I note that other courts have perceived this difficulty, and that some courts have adopted a special test for the sufficiency of the evidence in these cases — that is, cases where the government charges attempted controlled substance misconduct based on evidence that the defendant possessed something that was not actually a controlled substance.
Because the prosecution of these cases ultimately hinges on proof of the defendant's mental state — proof that the defendant subjectively believed that the substance in their possession was a controlled substance — these courts have adopted the rule that the defendant's objective conduct, taken as a whole, must unequivocally corroborate the government's assertion about the defendant's subjective mental state. See State v. Harris, 846 So.2d 709, 714 (La. 2003); United States v. Pennell, 737 F.2d 521, 525 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); and United States v. Everett, 700 F.2d 900, 908-09 (3rd Cir. 1983).
Here is the Harris court's description of the necessary proof:
The defendant's objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics. Pennell, 737 F.2d at 525 (citing United States v. McDowell, 705 F.2d 426, 428 (11th Cir. 1983)). ... [This rule is needed] to preclude unjust attempt convictions in cases in which there is no proof that the substance is actually a controlled substance[.]Harris, 846 So.2d at 714. And here is how the Sixth Circuit described this rule in Pennell, 737 F.2d at 525:
In order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, [must] mark the defendant's conduct as criminal in nature. ... In other words, the defendant's objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics.
If this were the governing law, I would have substantial doubts about the sufficiency of the evidence to support Humpherville's indictment. However, neither of the parties to this appeal has briefed this issue. Accordingly, I concur in the result reached by my colleagues.