Opinion
Court of Appeals No. A-9772.
March 26, 2008.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge, Trial Court No. 4FA-06-1825 CR.
Gary Stapp, Law Office of Gary Stapp, Fairbanks, for the Appellant. Joseph B. Dallaire, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Steven W. Jennen was convicted of sixth-degree misconduct involving a controlled substance for possessing marijuana. On appeal, he claims that the evidence was insufficient to prove that he possessed marijuana. For the reasons explained here, we affirm Jennen's conviction.
AS 11.71.060(a)(1).
Jennen also claims that the district court erred when it enhanced his sentence based on a prior marijuana-related charge. We agree that the district court erred when it relied on an unexplained prior charge to enhance Jennen's sentence. We also find that the district court erred when it failed during the sentencing proceedings to advise Jennen of his right of allocution. Accordingly, we affirm Jennen's conviction but vacate his sentence and remand for proceedings consistent with our decision.
Facts and proceedings
District Court Judge Raymond M. Funk presided over a jury trial. At trial, the State called two witnesses who provided the following evidence. Early on the morning of May 21, 2006, Jennen was standing in the parking lot of a bar in Fairbanks as the bar neared its closing time. The bar's manager, Ronetta Andersen, and a Fairbanks Police Officer, Sergeant Robert Thompson, smelled the odor of burning marijuana.
Andersen could see that Jennen was smoking a hand-rolled cigarette. Andersen said that she was about six feet from Jennen and that the odor was strong. She said that she was familiar with the "distinct" odor associated with smoking marijuana. She said that some other people commented to her that they too thought that Jennen was smoking marijuana. When she approached Jennen to talk to him, he put the hand-rolled cigarette in his mouth and swallowed it. When she put out her hand and asked him to give her the item he had just put in his mouth, Jennen spit into her hand.
Sergeant Thompson testified that he had been employed by the Fairbanks Police Department for approximately five years, and had worked in law enforcement for approximately fifteen years. He testified that he had investigated marijuana cases "numerous" times during that period and was familiar with the smell of burning marijuana. He said he was about fifteen feet from Jennen and could smell burning marijuana and see that Jennen was smoking a hand-rolled cigarette. Thompson watched Jennen put the cigarette in his mouth when Andersen approached him. When Thompson contacted Jennen, Jennen had a "very strong odor of . . . burnt marijuana coming from his breath, from his clothing, [from] all over him, [but] particularly coming right off his breath."
During cross-examination, Thompson emphasized that the odor coming from Jennen was strong enough to indicate that he "had just finished smoking." He said that the odor was too strong to be from "second-hand smoke." On re-direct, Thompson said that burning marijuana had a distinct odor and that he smelled burnt marijuana on Jennen's breath right after Jennen swallowed the cigarette he had been smoking.
Both Andersen and Thompson testified, without any objection from Jennen, that they were familiar with the smell of burning marijuana . They also both testified, again without objection, that the odor coming from Jennen was that of burning marijuana. Andersen and Thompson were the only witnesses for the State, and the State offered no other evidence.
After the State rested, Jennen moved for a judgment of acquittal, asserting that the evidence was insufficient to convict him. Judge Funk denied the motion. He found that there was sufficient evidence based on the witnesses' testimony to send the case to the jury.
Jennen then took the stand and testified in his defense. He denied smoking marijuana and said he had no idea why the State's witnesses had smelled marijuana on him. He speculated that he may have acquired the odor while in the bar. He acknowledged that he occasionally smoked cigarettes, but said he could not recall if he was smoking one when Andersen approached him. He testified that he had never swallowed a burning object, and he denied putting anything into his mouth when Andersen approached him.
Jennen rested his case after his testimony, and the parties discussed jury instructions. The State requested an instruction that the jury could rely on lay witness testimony identifying the burning substance Jennen possessed as marijuana. Judge Funk declined to give an instruction, pointing out that Jennen had not objected to the lay witness testimony. Judge Funk ruled that it was up to the jury to decide what weight to give the testimony. Jennen did not contest this ruling.
The jury found Jennen guilty of sixth-degree misconduct involving a controlled substance. After discharging the jury, Judge Funk conducted the first of two sentencing proceedings. The State informed the court it had no record of any prior convictions, but indicated that its records showed Jennen had a 2003 charge for possessing marijuana, a charge that had later been dismissed. Jennen's attorney explained that a citation had been issued in the prior case and that he thought it was a "traffic related thing."
In his sentencing remarks, Judge Funk said that the "normal sentence for this offense tends to be a fine and not any jail time . . . for a first offense." But Judge Funk found that Jennen had been charged for possessing marijuana before, that he had been untruthful when he testified in this case, and that he was flouting the law by smoking in public. Judge Funk found that these factors made this an "aggravated offense in the court's mind." Judge Funk then decided that because Jennen had a prior charge for marijuana possession, "a substantial amount of suspended time and a large number of community work service hours would be the appropriate response, rather than a fine." Following these statements, Judge Funk, "considering the statutory and Chaney criteria," imposed a 40-day sentence with 39 days suspended.
Sixth-degree misconduct involving a controlled substance is a class B misdemeanor and carries a maximum jail term of 90 days. AS 11.71.060(b); AS 12.55.135(b).
Judge Funk was referring to State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) and AS 12.55.005 (codifying the Chaney sentencing criteria).
Judge Funk also ordered Jennen to do 100 hours of community work service. But Jennen told Judge Funk that he would rather serve his jail time than do the community service. A hearing was scheduled for the next day to determine whether Jennen wanted to waive probation.
The next day, Judge Funk told Jennen he would permit him to pay a fine in lieu of community work service. But Jennen said he still wanted to refuse probation and serve his full sentence. Judge Funk therefore found a voluntary refusal of probation and ordered Jennen to start serving his sentence by November 15, 2006.
At the sentencing hearing, Jennen's attorney expressed his view that the sentence was unusually severe. At the attorney's prompting, Judge Funk acknowledged that Jennen had previously only been cited, not arrested, for marijuana possession, and that the State had dismissed the charge. Judge Funk then explained that he had imposed the 40-day sentence primarily because he was convinced Jennen had lied at trial but also because Jennen, despite previously being charged with marijuana possession, had flouted the law by his conduct in this case. Judge Funk then added that if Jennen had not lied in his testimony, he would not have imposed any jail time, only community work service.
Judge Funk issued an amended judgment, but it did not reflect his finding that Jennen had voluntarily refused probation. Rather, the amended judgment imposed a sentence of 40 days with 39 days suspended and placed Jennen on probation for 1 year. Jennen was given the option of community work service or a fine.
Jennen appeals his conviction and sentence.
Why we find the evidence sufficient to uphold the conviction
Jennen asserts that there was insufficient evidence to support his conviction. In particular, he argues that there was no direct evidence that he possessed marijuana.
In reviewing the sufficiency of the evidence at trial, we must construe the record in the light most favorable to the jury's verdict and determine whether fair-minded jurors could conclude that the State met its burden of proving guilt beyond a reasonable doubt. We apply the same standard regardless of whether the State's case is based on circumstantial or direct evidence.
Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976).
Id. at 184.
Jennen, relying on the Alaska Supreme Court decisions in Lee v. State and Judd v. State, asserts that in order to convict him, the State had to have a "sufficient quantity" of the substance he was smoking to "permit proper identification." Jennen points out that in his case, "no usable quantity was found." But Jennen overlooks the testimony of the two State witnesses. These witnesses, based on their observations and experience, identified the substance Jennen was smoking as marijuana. As the Lee court explained, if "all of the evidence in the case, taken together, supports the jury's findings of knowing possession beyond a reasonable doubt, the conviction is proper."
511 P.2d 1076 (Alaska 1973).
482 P.2d 273 (Alaska 1971).
Lee, 511 P.2d at 1078 (quoting Judd, 482 P.2d at 280).
Id.
Jennen's case is similar to Winters v. State, another case in which the State offered only circumstantial and lay evidence to identify a controlled substance. Winters was charged with providing marijuana to a minor, Todd Slaughter, after he gave three marijuana cigarettes to Slaughter at a party. The State was unable to seize any of the marijuana because it was consumed or disappeared before the police became involved. Winters claimed that the State's evidence was insufficient to establish that "what he gave to Slaughter was marijuana in any form."
646 P.2d 867 (Alaska App. 1982).
Id. at 871.
Id.
Id. at 870.
Because no marijuana was seized, no scientific tests were conducted. Moreover, none of the witnesses at trial said they had seen or tasted the substance rolled in the cigarette papers, nor had they felt the effects of smoking the substance. Yet, Slaughter said that Winters gave him "three cigarettes which [Winters] called `joints.'" And Slaughter testified that he thought the joints contained marijuana even though he never smoked them. Furthermore, both Winters and Slaughter testified that "they assumed that the cigarettes were marijuana because they looked like marijuana cigarettes, were purchased by Winters as marijuana cigarettes, and Slaughter saw them smoked as if they were marijuana cigarettes."
Id.
Id.
Id.
Id.
Id.
Viewing this circumstantial evidence in the light most favorable to the State, we concluded that "a fair-minded jury could have found beyond a reasonable doubt that Winters transferred marijuana to Slaughter." Even though the State could not present any of the substance that Winters provided to Slaughter or any expert testimony or scientific tests identifying the substance as marijuana, the evidence was enough to support the conviction.
Id.
In his reply brief, Jennen challenges the State's witnesses' training and experience in identifying marijuana by its odor. But Jennen did not object to the witnesses' qualifications at trial or ask them to elaborate on their training or experience. Nor did he request any instructions limiting the jury's consideration of their testimony. He also did not object when Judge Funk — in denying the State's request for a jury instruction on lay witness testimony — ruled that the "issue of the weight to be given [Andersen's and Thompson's] testimony is exactly what's left to the jury and left open to argument."
The arguments Jennen raises in his reply construe the evidence in the light most favorable to himself. As already explained, when we evaluate a claim of insufficient evidence, we view the evidence in the light most favorable to the jury's verdict.
The evidence at trial showed that Andersen and Thompson were familiar with the odor of burning marijuana. Both witnesses knew, from their experience, that this odor is distinct, and they both smelled this distinct odor coming from Jennen. When Andersen approached Jennen, she saw him put the cigarette in his mouth and swallow it, an act that demonstrated a consciousness of guilt. Thompson also saw Jennen put the hand-rolled cigarette in his mouth, and when he contacted Jennen, he smelled a strong odor of burnt marijuana on his breath — strong enough to indicate that Jennen "had just finished smoking." This evidence was sufficient to allow fair-minded jurors exercising reasonable judgment to conclude that the State had met its burden of proving beyond a reasonable doubt that Jennen knowingly possessed marijuana.
Why we find Judge Funk erred when he used Jennen's prior unexplained charge to enhance Jennen's sentence.
At sentencing, Judge Funk said that the "normal sentence for this offense tends to be a fine and not any jail time . . . for a first offense." But Judge Funk found that Jennen had been charged with possessing marijuana before, that he had been untruthful when he testified in this case, and that he was flouting the law by smoking in public. He found that these factors made this an "aggravated offense in the court's mind."
Sixth-degree misconduct involving a controlled substance is a class B misdemeanor and carries a maximum jail term of 90 days. AS 11.71.060(b); AS 12.55.135(b).
At the first sentencing hearing, Judge Funk concluded that, because Jennen had a prior charge for marijuana possession, "a substantial amount of suspended time and a large number of community work service hours would be the appropriate response, rather than a fine." Judge Funk then imposed a 40-day sentence with 39 days suspended and 100 hours of community work service.
The next day, Judge Funk said that if Jennen had not lied in his testimony at trial, he would not have imposed any jail time, only community work service. But earlier in the second sentencing hearing, Judge Funk reiterated his other reasons for the sentence he imposed — that Jennen had previously been charged with marijuana possession and, despite this, had flouted the law by his conduct in this case. We conclude that Judge Funk's sentencing remarks, taken as a whole, indicate that he relied on Jennen's previous charge for marijuana possession when he imposed the sentence in this case.
Jennen asserts that Judge Funk erred when he enhanced Jennen's sentence based on the prior charge. Jennen argues that courts should not use "unproven charges to enhance sentences." We agree that Judge Funk should not have considered Jennen's prior charge. Our supreme court has repeatedly disapproved the practice of considering unexplained police "contacts" or arrest records in determining the appropriate sentence in a criminal matter.
See, e.g., Thurlkill v. State, 5 51 P .2d 5 4 1, 5 4 4 (Alaska 1 9 7 6); Griggs v. State, 494 P.2d 795, 798 (Alaska 1972); Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971). Compare Whitton v. State, 533 P.2d 266, 269 (Alaska 1975) (sentencing judge did not err in considering a "rap sheet" when court knew the disposition of the offenses listed).
When Judge Funk imposed the sentence, neither the prosecutor nor Jennen's attorney could explain the circumstances of Jennen's prior charge. The prosecutor indicated that Jennen was charged with possessing marijuana in 2003 and said, without further explanation, that the State had dismissed the charge. Jennen's attorney said he thought it was a "traffic related thing" involving a citation. The next day, at the second hearing, Jennen's attorney added that it appeared Jennen's citation had been dismissed because he had been in a vehicle that belonged to someone else. But there was no further explanation of the circumstances of Jennen's 2003 charge. Consequently, we conclude Judge Funk erred when he relied on this unexplained charge when he imposed Jennen's sentence. We therefore remand the case for resentencing.
Other sentencing issues
Jennen also argues that he was not provided the opportunity to address Judge Funk at the sentencing hearing. Although Jennen does not precisely claim that he was denied the right of allocution, the record shows that he was not advised of this right or otherwise invited to personally address the court on his "own behalf and to present any information in mitigation of punishment." A defendant cannot waive the right of allocution unless the defendant has been advised of that right. Furthermore, in Mohn v. State, our supreme court ruled that failure to allow allocution is reversible error warranting remand for resentencing. Accordingly, at resentencing, Jennen shall be allowed the opportunity to personally address the court on his "own behalf and to present any information in mitigation of punishment."
See Alaska Criminal Rule 32.2(b).
Mohn v. State, 584 P.2d 40, 45 (Alaska 1978).
Id. at 44-45.
Finally, we note one other potential issue that should be clarified at resentencing. When imposing sentence, Judge Funk factored in his finding that Jennen had testified untruthfully at the trial. In Strachan v. State, our supreme court explained that a sentencing judge "may take into account his belief that the defendant committed perjury at trial," but the "sentence . . . imposed must be for the underlying offense, not for [the] perjury." The supreme court ruled that it was improper to automatically enhance a sentence as a "sanction because of the judge's belief that perjury was committed." On the other hand, a judge may properly take into account the belief that perjury was committed when evaluating the defendant's "prospects for rehabilitation and restoration to a useful place in society."
615 P.2d 611 (Alaska 1980).
Id. at 613 (citations omitted).
Id.
Id. (quoting United States v. Grayson, 438 U.S. 41, 55, 98 S. Ct. 2610, 2618, 57 L. Ed. 2d 582 (1978)).
The supreme court went on to explain that "[b]ecause the dividing line between permissible and impermissible sentencing practice in this respect is so subjective, . . . in cases where a sentencing judge believes that perjury has occurred, he should state [how] the perceived perjury relates to [the] sentence [imposed]." At resentencing, Judge Funk should explain how the perceived perjury relates to Jennen's sentence.
Id. at 614.
Conclusion
We AFFIRM Jennen's conviction but VACATE his sentence and remand the case for proceedings consistent with this decision. We do not retain jurisdiction.