Opinion
Court of Appeals No. A-9009.
October 11, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-03-3964 CR.
Robert S. Noreen, Fairbanks, for the Appellant.
Dean J. Guaneli, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In this appeal, Zachariah A. Krug contends that there is insufficient evidence to support several of his convictions. He also argues that the superior court improperly admitted evidence of prior bad acts.
We conclude that sufficient evidence supports Krug's convictions and that the court did not abuse its discretion when it admitted the challenged evidence.
Background facts and proceedings
On July 6, 2003, Alaska State Troopers responded to a report of a break-in at a cabin near Chena Hot Springs. When the troopers arrived at the cabin, they saw a red vehicle which the owners of the cabin said had not been there when they called the troopers. The troopers saw two individuals leaving the cabin. The troopers stopped one of the individuals, who was later identified as co-defendant Justin Lopez. The other individual fled through the woods.
Inside the cabin, troopers found items commonly used to manufacture methamphetamine. Troopers also found that the door jamb on the side door of the cabin was split, indicating that it had been forced open by a kick or a push. After investigating the cabin, the troopers found two other individuals, later identified as co-defendants Jeremy Mattson and Katrina Stracener, on the road near the cabin.
The troopers obtained a search warrant to search the red vehicle. When they executed the warrant, they found a wallet that contained pay stubs with Krug's name on them and a picture of Krug with a female and a dog. A small amount of methamphetamine was also found in the car.
Later that evening, Alaska State Trooper Karl Main found and interviewed Krug after a local resident reported seeing an individual believed to be the person who earlier fled from the cabin. Krug admitted to Trooper Main that he was the person who fled from the cabin. Krug told Trooper Main he had been at the cabin since the previous night, had used methamphetamine there, and had provided ephedrine tablets for the manufacture of methamphetamine there on several occasions. Krug showed Trooper Main where methamphetamine manufacturing supplies had been hidden in the woods near the cabin. Trooper Main also observed iodine stains on Krug's hands. Trooper Main testified at trial that the stains were consistent with stains acquired during the manufacture of methamphetamine. Krug also admitted to having spent time with the other co-defendants at another cook site, Stracener's house on Peggy Road in North Pole.
Krug was indicted on one count of illegally manufacturing methamphetamine, two counts of possession of ingredients used to manufacture methamphetamine (red phosphorous and pseudoephedrine), and one count of possession of a controlled substance (methamphetamine). Krug was also charged with one count of first-degree burglary with intent to commit theft or criminal mischief, and separate counts of felony theft and felony criminal mischief.
AS 11.71.020(a)(1).
AS 11.71.020(a)(4).
AS 11.71.040(a)(3).
AS 11.46.300(a)(1).
AS 11.46.130(a)(1) AS 11.46.482(a)(1), respectively.
At trial, the court qualified Trooper Main as an expert in the investigation of methamphetamine laboratories. Trooper Main testified that, in his experience, it is typical for someone who supplies raw materials to make methamphetamine to also be "put to work" in the manufacturing process. Trooper Main testified that the manufacturing process used at the cabin in Chena Hot Springs was similar to the process used at Peggy Road, a site which Trooper Main investigated a few weeks earlier. Trooper Main described the ways in which those two cook sites stood out from other cook sites in the area. After this testimony, Superior Court Judge Richard D. Savell gave a limiting instruction to the jury that Krug was not on trial for activities at Peggy Road, and that the evidence should be considered only to show knowledge, intent, motive, lack of accident, plan or preparation. Krug's counsel did not object to this limiting instruction.
As part of a plea agreement, co-defendant Mattson agreed to testify against Krug. Mattson testified that he cooked methamphetamine with Krug "pretty much throughout the whole summer." At this point, Judge Savell again instructed the jury that testimony regarding Krug's activities at Peggy Road should be considered only to show knowledge, intent, motive, lack of accident, plan or preparation. Mattson testified that at Peggy Road, Mattson watched Krug and assisted him in cooking the methamphetamine, but that Krug was responsible for "pretty much the whole process."
According to Mattson, Krug and others had been cooking methamphetamine at Stracener's house for most of the summer, but moved the operation to the cabin in Chena Hot Springs after Mattson arranged for Krug to receive (false) information that police were about to raid Stracener's house. Mattson testified that Krug was responsible for moving the supplies from Peggy Road to the cabin in Chena Hot Springs. Mattson said that he, Krug, and Lopez set up the supplies, and then Krug and Lopez cooked methamphetamine in the cabin while Mattson slept. Mattson also testified that, before the officers arrived at the cabin, Mattson packed up the equipment he and Krug had been using to cook the methamphetamine and hid the equipment in the woods.
At the close of the State's case, Krug moved for a judgment of acquittal on the charge of possession of ingredients used to manufacture methamphetamine (specifically red phosphorous). Judge Savell denied the motion.
During jury deliberation, Judge Savell stated that there may be an issue of inconsistent verdicts, depending on the jury's verdicts. Judge Savell wondered whether the State had presented any evidence other than the damaged door that would support a conviction for criminal mischief. The State told Judge Savell that its theory of criminal mischief was based on the damage caused by the manufacture of methamphetamine. Judge Savell replied that criminal mischief required proof of intent to damage property and the damage that occurred as a result of manufacturing the methamphetamine certainly could be attributed to reckless indifference. Judge Savell stated that, if the jury acquitted on the theft charge, but convicted on the burglary charge, he expected the predicate intent for the burglary would be the intent to commit criminal mischief, so Judge Savell said he would "take steps to determine that there's a unanimous verdict on what the intent was."
The jury convicted Krug of all charges except second-degree theft. Judge Savell asked the jury what predicate intent supported the burglary conviction. The foreperson replied that Krug was convicted of burglary based on the intent to commit criminal mischief. After confirming that there was no disagreement among the jurors on this point, Judge Savell asked if the verdict of criminal mischief was based on a finding that Krug intended to damage property, and the foreperson replied in the affirmative. Krug's counsel did not object to this questioning but said that he "had one other" question for the jury.
Krug's counsel expressed concern regarding the unanimity of the conviction for possession of red phosphorous and moved for a judgment of acquittal notwithstanding the verdict. The court then asked the jury foreperson whether the possession of phosphorous was active or constructive, and whether it was sole or joint. The foreperson replied that it was constructive and joint. Further questioning determined that the verdict on the manufacturing count was based on accomplice liability. At this point, Krug's counsel did not suggest or request any additional questions for the court to pose to the jury.
After the jury was dismissed, Krug moved for a judgment of acquittal on the criminal mischief count and the burglary count. Krug argued that there was insufficient evidence to support the conviction for criminal mischief because Krug's intent to damage the property in the process of manufacturing methamphetamine was not proven beyond a reasonable doubt. Judge Savell said he would not entertain an oral motion, but invited Krug to file his motion in writing. Krug did not submit a written motion.
Krug appeals all of his convictions except his conviction for possession of methamphetamine.
Sufficiency of the evidence supporting Krug's convictions
Krug argues that insufficient evidence supports several of his convictions. In reviewing whether evidence presented at trial is sufficient to support a conviction, this court views the evidence presented, and reasonable inferences that can be drawn from the evidence, in the light most favorable to the State. Viewing the evidence in that light, we must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Id.
Krug argues that insufficient evidence supports his conviction for manufacture of methamphetamine and his two convictions for possession of methamphetamine precursors. He argues that the only evidence that linked him to the above crimes was Mattson's testimony, and therefore that his conviction was based on uncorroborated accomplice testimony. Mattson testified at trial that Krug and Lopez cooked methamphetamine in the cabin while he slept. According to Krug, the evidence corroborating Mattson's testimony was "either insufficient, irrelevant or for the limited purpose as defined by [Alaska Evidence] Rule 404."
Under AS 12.45.020, testimony of an accomplice cannot form the basis of a conviction unless the testimony is corroborated by other evidence "that tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission." To meet this statutory requirement, the State must show
See also Johnson v. State, 501 P.2d 762, 767 (Alaska 1972).
no more than that the corroborating evidence strengthens or confirms the testimony of the accomplice; it must induce "in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event." There is no requirement that every element of an offense testified to by an accomplice be independently corroborated by other evidence.
Brown v. State, 693 P.2d 324, 329 (Alaska App. 1984) (quoting Oxenberg v. State, 362 P.2d 893, 897 (Alaska 1961)).
We conclude that the evidence of Krug's involvement in the manufacturing process was sufficient to corroborate Mattson's testimony. Mattson testified that Krug and Lopez manufactured methamphetamine in the cabin while he slept. In addition to this direct evidence of Krug's involvement in the manufacturing process, the State provided substantial circumstantial evidence of Krug's involvement. Krug admitted to officers at the scene that he had provided ephedrine tablets for the manufacture of methamphetamine on more than one occasion. Krug also admitted that he had been present at the cabin when the methamphetamine was produced.
See United States v. Shriver, 838 F.2d 980, 984 (8th Cir. 1988) (circumstantial evidence sufficient to corroborate testimony of two accomplices and support defendant's conviction); United States v. Lyles, 380 F.2d 769, 770 (6th Cir. 1967) (circumstantial evidence may be used to corroborate an accomplice's testimony and admissions that tend to incriminate the accused); Christy v. United States, 261 F.2d 357, 359-60 (9th Cir. 1958) (evidence to corroborate testimony of accomplice need not be direct and positive, but may be circumstantial in nature); Stanley v. United States, 245 F.2d 427, 433 (6th Cir. 1957) (circumstantial evidence may be sufficient to corroborate the testimony of an accomplice).
Furthermore, Trooper Main, who was qualified at trial as an expert in the investigation of methamphetamine laboratories, testified that, in his experience, it was typical for someone who provided raw materials for making methamphetamine to be "put to work" in the manufacturing process. Trooper Main also testified that the iodine stains he observed on Krug's hands at the scene were consistent with stains acquired during methamphetamine manufacture. Trooper Main testified that he found a picture of Krug and paystubs with Krug's name on them in the red vehicle near the cabin. Trooper Main also testified that officers found pseudoephedrine and red phosphorous among the supplies in the woods to which Krug directed officers. According to Trooper Main's testimony, Krug led officers to a black duffel bag and a black action packer that were hidden in the woods near the cabin. Inside the duffel bag, officers found matchbooks, which serve as a source of red phosphorus for manufacturing methamphetamine. Near the duffel bag, officers also found a box of Sudafed, commercially produced cold tablets which are used as a source of ephedrine.
This circumstantial evidence corroborates Mattson's testimony that Krug had participated in the methamphetamine manufacturing at the cabin. Viewed in the light most favorable to the State, a reasonable juror could conclude, beyond a reasonable doubt, that Krug was an accomplice in the manufacturing process and that he constructively possessed both red phosphorous and ephedrine or pseudoephedrine as part of that manufacturing process.
See Dailey, 65 P.3d at 898.
Krug also argues that the State did not present sufficient evidence of his intent to damage property to support his conviction for criminal mischief and for burglary, which was based on the predicate intent to commit criminal mischief. Krug asserts that, because the jury found him guilty of manufacturing methamphetamine under an accomplice theory, "there is insufficient evidence to establish that [Krug] intended to damage the property to a degree greater than $500 when the State concedes [the] damage was primarily the byproduct of the manufacture of methamphetamine." Judge Savell asked the prosecutor why the State had not used the intent to manufacture methamphetamine as the predicate intent for the burglary charge. The prosecutor responded that it had been an "oversight."
The jury convicted Krug of third-degree criminal mischief and first-degree burglary based on the criminal mischief conviction. After the jury was dismissed, Krug moved for a judgment of acquittal on both convictions, arguing that the State did not prove beyond a reasonable doubt that Krug intended to damage property while manufacturing methamphetamine. Judge Savell said he would not entertain an oral motion but invited Krug to submit a written motion. There is no evidence in the record that Krug submitted a written motion. Because Krug did not submit a written motion for a judgment of acquittal during trial, he must now show plain error.
See Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969).
Under AS 11.81.900(a)(1), a person acts "`intentionally' with respect to a result described by a provision of law defining an offense when the person's conscious objective is to cause that result." Thus, the State had the burden at trial of showing, through direct or circumstantial evidence, that Krug intended to cause more than $500 in damage to the cabin.
See Gray v. State, 463 P.2d 897, 905 (Alaska 1970); Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
The State presented evidence that Krug had experience manufacturing methamphetamine, that manufacturing was an inherently destructive process, and that Krug intentionally sought out an indoor location for manufacturing. Mattson testified that Krug had experience manufacturing methamphetamine, and Mattson said he had cooked with Krug at the Peggy Road site "throughout the whole summer." Mattson estimated that Krug cooked methamphetamine at Peggy Road forty times during the summer. Mattson also testified that Krug selected the Chena Hot Springs cabin as the site to which they would move their manufacturing activities after leaving the Peggy Road site.
Trooper Main, who was certified at trial as an expert in methamphetamine lab investigation, gave testimony regarding the destructive effects methamphetamine manufacturing can have on buildings in general. Trooper Main also testified about the specific damage he observed in the cabin. The owners of the cabin estimated that it would cost $18,000 to repair the damage to the cabin.
The above evidence establishes that methamphetamine manufacturing was an extremely damaging activity and that Krug, given his experience, could reasonably be assumed to be aware of the damage that would result from that activity. Furthermore, evidence that Krug sought out a remotely located cabin as an indoor manufacturing site, instead of a house used by himself or a friend, supports the conclusion that Krug was aware that manufacturing the drug could cause significant damage to the building in which it was conducted. In this case, the jury could reasonably infer from the evidence presented that Krug intended the natural and probable consequences of manufacturing methamphetamine, not only the methamphetamine but the destructive chemical byproducts that ruined the interior of the cabin. We conclude that sufficient evidence supported Krug's convictions for burglary and criminal mischief.
Evidence of Krug's prior bad acts
Krug argues that the superior court erred by admitting evidence of Krug's prior methamphetamine manufacturing experience under Alaska Evidence Rule 404(b)(1).
Before trial, the State filed a motion in limine, seeking a ruling under Evidence Rule 404(b) on the admissibility of evidence of Krug's prior involvement in the methamphetamine manufacturing operation at Peggy Road. Krug objected to the admission of the evidence because the motion was filed shortly before trial and Krug had not had an opportunity to review the evidence. Krug's counsel asked the court to either find the Rule 404(b) motion was tardy and deny it, or allow the defense more time to explore the evidence of Krug's prior misconduct. The State agreed to refrain from introducing some evidence (that Krug held a gun to Stracener's head, and that Krug had manufactured methamphetamine at a third location). After the State agreed not to introduce this evidence, Krug did not object to Judge Savell granting the State's Rule 404(b) motion.
Krug now argues that the admission of evidence of Krug's involvement at the Peggy Road methamphetamine manufacturing operation exceeded the scope of allowable evidence under Rule 404(b) and was improper under Alaska Evidence Rule 403 because it was more prejudicial than probative. Krug argues that Trooper Main's testimony that Krug admitted to officers that he had been present at the Peggy Road site, had witnessed the manufacturing at the cabin, and was seeking methamphetamine, is "pure propensity [evidence] and only highlights [Krug's] prior admitted misconduct as a user and [that] familiarity with the co-defendants as methamphetamine producers." Krug also argues that Mattson's testimony that Krug manufactured methamphetamine at the Peggy Road site more than forty times is "so inflammatory and prejudicial from a [Rule] 404(b) perspective that it denies [Krug] . . . a fair trial on unrelated charges."
Alaska Evidence Rule 404(b)(1) allows the admission of evidence of "other crimes, wrongs, or acts" to show, inter alia, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." This court reviews a trial court's decision to allow evidence of prior bad acts under Evidence Rule 404(b) for an abuse of discretion.
Weitz v. State, 794 P.2d 952, 955 (Alaska App. 1990).
In this case, the evidence of Krug's prior involvement with methamphetamine manufacturing showed that Krug had knowledge of the process of making methamphetamine and that Krug was aware of the kind of damage to property that process caused. In addition, evidence that Krug was seeking methamphetamine was probative to show that Krug had motive and intent to manufacture methamphetamine. Thus, the admission of the evidence of Krug's prior misconduct is consistent with the requirements of Rule 404(b)(1).
See, e.g., Adkinson v. State, 611 P.2d 528, 532 (Alaska 1980).
Evidence of prior bad acts may still be inadmissible if the court deems it more prejudicial than probative. In this case, Krug asserts that Mattson's testimony that he had observed Krug manufacture methamphetamine more than forty times at the Peggy Road site was more prejudicial than probative. But Krug did not object to this testimony at trial. Further, during both Mattson's and Trooper Main's testimony regarding Krug's prior manufacturing experience, Judge Savell gave the jury limiting instructions that the evidence should be considered only for the purposes outlined in Rule 404(b)(1). In neither case were these instructions prompted by the defense, nor did Krug object to the sufficiency of either limiting instruction. Although the evidence of Krug's prior manufacturing activities was damaging to the defense, Krug has not established that it was unfairly prejudicial. Therefore, we hold that Judge Savell did not abuse his discretion in allowing admission of evidence of Krug's prior manufacturing activities.
A.R.E. 403; Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973).
See Adkinson, 611 P.2d at 532 n. 15.
Conclusion
The judgment of the superior court is AFFIRMED.