Summary
holding that the jury could reasonably conclude defendant intended to distribute heroin based on police officer's testimony that heroin users generally use no more than 0.2 grams at a time, and possession of even half of the twenty-five grams found in defendant's case would be enough to suggest that the owner was involved in distribution
Summary of this case from Stacy v. StateOpinion
Court of Appeals No. A-10676 Trial Court No. 3AN-07-14478 CR No. 5798
02-01-2012
VANCE NELSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michael Stryszak, Assistant District Attorney, Adrienne P. Bachman, District Attorney, 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, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michael Stryszak, Assistant District Attorney, Adrienne P. Bachman, District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Vance Nelson was convicted of second-degree misconduct involving a controlled substance (possession of heroin with intent to deliver), resisting arrest, and other misdemeanor offenses. Nelson argues that there was insufficient evidence to support his conviction for second-degree misconduct involving a controlled substance and his conviction for resisting arrest. We conclude that Nelson's conviction for second- degree misconduct involving a controlled substance is supported by sufficient evidence, but that his conviction for resisting arrest is not.
Background
On the evening of December 24, 2007, Anchorage Police Officer Robert Wurst was patrolling the Spenard area of Anchorage when he watched a vehicle make an illegal lane change. Wurst entered the license plate number into his computer and discovered that the expiration date on the plate was inconsistent with the computer results. He activated his overhead lights to stop the vehicle as it turned into the Spenard Motel parking lot. Before Wurst had even put his car into park, the driver of the vehicle — later identified as Vance Nelson — jumped out and began running toward the back of the motel. Wurst ran after Nelson and, without losing sight of him, followed him in nearly a full circle around the hotel while repeatedly telling him to stop. Nelson eventually stopped running and Wurst told him to get down on the ground. When Nelson just stood there, Wurst grabbed his arm and took him to the ground.
On the ground, Officer Wurst attempted to handcuff Nelson, but Nelson did not cooperate and tucked both arms underneath his body, despite having been told to put his hands behind his back. Wurst was able to reach under Nelson, grab his left wrist, and handcuff it. Wurst then observed Nelson move his right hand into his coat and thought Nelson was trying to grab a weapon. He grabbed Nelson's right wrist and was able to get Nelson's hand out of his coat, behind his back, and into the handcuffs. The struggle on the ground lasted somewhere between thirty seconds and one minute.
Wurst did not see anything in Nelson's hand when he pulled it out from under Nelson. But when Wurst stood Nelson up to search him he saw a clear baggie on the ground, which contained a dark brown substance that resembled heroin. Wurst also noticed that the jacket pocket Nelson had reached into was inside out. Keeping one hand on Nelson, Wurst leaned down and picked up the bag with his other hand.
The ground around Wurst and Nelson was covered in about three inches of fresh snow. Wurst saw the footprints and impressions caused by the chase and struggle on the ground, but did not see any other footprints in the snow. The bag of heroin was sitting on top of the fresh snow with a dusting of crushed snow on top of it. Testing later established that the bag contained 24.7 grams of heroin, divided into two large, individually bagged lumps.
Other officers arrived to assist Wurst. After talking to a motel employee, Officer John Bolen found Terri Osheim outside of room 30. Osheim was a passenger in the vehicle driven by Nelson. Bolen searched Osheim's purse and found crack pipes, a scale, and a wallet. In the wallet were more than twenty small squares of cut up plastic bag. The plastic squares were the type commonly used to package heroin. A residue on the scale tested positive for heroin. The officer also found two pieces of mail with Nelson's name on them in Osheim's purse.
Nelson was indicted on one count of misconduct involving a controlled substance in the second degree (possession of heroin with intent to deliver). The State also charged him with several misdemeanor offenses, including resisting or interfering with arrest.
AS 11.71.020(a)(1).
AS 11.56.700(a)(1).
Anchorage Police Detective Leonard Torres testified at trial as an expert in the area of drug distribution. Torres testified that twenty-five grams of heroin is an amount commonly sold by high-level dealers to lower-level dealers. A normal single dose of heroin is between .1 and .2 grams, depending on the quality of the heroin and the level of addiction. Torres also testified that twenty-five grams of heroin is worth $4000 to $6000 and constitutes approximately 250 doses.
At the close of the State's case, Nelson made a motion for judgment of acquittal with respect to the second-degree misconduct involving a controlled substance charge. Judge Spaan denied the motion, concluding that the evidence, when viewed in the light most favorable to the State, was sufficient to allow a reasonable jury to convict Nelson of second-degree misconduct involving a controlled substance. The jury found Nelson guilty of all charges.
Nelson now appeals Judge Spaan's denial of his motion, arguing again that insufficient evidence supports his conviction for second-degree misconduct involving a controlled substance. He also argues, for the first time on appeal, that his conviction for resisting arrest is not supported by sufficient evidence.
Discussion
When we review a claim of insufficient evidence, we view the evidence presented at trial and the reasonable inferences from the evidence in the light most favorable to the verdict. We resolve all conflicts and doubts presented by the evidence in favor of the jury's verdict, and then ask whether, viewing the evidence in that light, a reasonable juror could have concluded that the State proved each element of the charge beyond a reasonable doubt.
Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)).
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Nelson's conviction for second-degree misconduct involving a controlled substance is supported by sufficient evidence.
In order to sustain Nelson's conviction for second-degree misconduct involving a controlled substance the evidence had to support a finding that Nelson possessed a schedule IA controlled substance with the intent to manufacture or deliver the controlled substance. Heroin is a schedule IA controlled substance. A person "possesse[s]" a controlled substance when the person has physical possession of or exercises dominion or control over the controlled substance. A person "deliver[s]" a controlled substance when they actively or constructively transfer or attempt to transfer the controlled substance from one person to another. Both possession and intent to deliver may be established solely by circumstantial evidence.
AS 11.71.020(a)(1).
AS 11.71.140(d)(11).
AS 11.81.900(b)(48).
See AS 11.71.900(6).
See Des Jardins v. State, 551 P.2d 181, 184 (indicating that the test for sufficient evidence is the same whether the conviction is the result of direct evidence or evidence that is wholly circumstantial).
Nelson argues that, because the baggie of heroin was found next to him, not on him, the State did not prove that he knowingly "possessed" the drug. He also argues that the State did not prove intent to deliver because the State did not prove that the items in Osheim's purse were connected to or possessed by Nelson. But, viewing all of the evidence together and in the light most favorable to the verdict, both possession and intent to deliver can be reasonably inferred.
In Hoekzema v. State, the defendant challenged his conviction for fourth-degree misconduct involving a controlled substance (possession of marijuana with intent to deliver). Hoekzema was driving a vehicle and was stopped for a traffic violation. The trooper smelled marijuana and saw two empty baggies containing remnants of marijuana. While searching the vehicle, the trooper observed Hoekzema turn his back, hunch up his shoulders, look away, bring his hands together in front of him, and make a "quick motion." These movements led the trooper to believe Hoekzema had thrown something on the ground. The trooper walked over and found a bag containing thirty-one grams of marijuana. Within the bag, the marijuana was divided into twelve smaller baggies. We concluded that the trooper's observations of Hoekzema's furtive movements, followed by the trooper's discovery of the bag of marijuana in the place Hoekzema had been standing, were sufficient to support a reasonable inference that Hoekzema knowingly possessed the bag of marijuana.
See 193 P.3d 765, 766 (Alaska App. 2008).
Id. at 767.
Id.
Id.
Id.
Id.
Id.
Id . at 767-68.
In this case, the jury could have reasonably concluded that Nelson possessed the bag of heroin Wurst found on the snow. Although Wurst did not see heroin in Nelson's hand, the State presented evidence of both Nelson's proximity to the heroin and of his hand movements which reasonably suggested that he took the heroin out of his pocket and left it on the ground before his right hand was handcuffed by Wurst.
The jury also heard that Nelson ran from his vehicle, even before the officer had a chance to put his vehicle into park. The jury could have reasonably concluded that Nelson ran to avoid being caught with a bag of heroin.
See Hess v. State, 20 P.3d 1121, 1125 (Alaska 2001) (quoting 1 McCormick on Evidence § 185, at 642-43 (John W. Strong ed., 5th ed. 1999)).
The jury could also reasonably conclude that Nelson intended to distribute the heroin. Detective Torres testified that twenty-five grams of heroin is an amount usually sold by high-level dealers to lower-level dealers. He stated that users of heroin (as opposed to dealers) generally use no more than .2 grams at a time and that possession of even half of this bag would be enough to suggest that the owner was involved in distribution.
In addition, Osheim, a passenger in Nelson's vehicle, was found with a purse containing materials commonly used to package heroin and a scale with heroin residue. The purse also contained two pieces of mail addressed to Nelson, which makes it reasonable to infer that he was connected to the heroin distribution materials. Viewing the totality of this evidence, a reasonable juror could have concluded that Nelson possessed heroin with the intent to distribute it.
Nelson's conviction for resisting arrest is not supported by sufficient evidence.
In order for Nelson to be convicted of resisting arrest, the State was required to prove that, with the intent of preventing his arrest, Nelson resisted the arrest by force. The Alaska statutes define "force" as "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement."
See AS 11.56.700(a).
AS 11.81.900(b)(27).
In Eide v. State, the defendant was on the floor in a sleeping bag when the state troopers tried to arrest him. When a trooper grabbed Eide's wrist to pull him up, Eide jerked away and told the trooper to leave him alone. Eide then rolled onto his stomach and tucked his arms beneath him, after which the trooper told him several times to stop resisting arrest. The trooper then used an electric shocking devise to force Eide to cooperate.
168 P.3d 499, 500 (Alaska App. 2007).
Id.
Id.
Id.
In Eide, we noted that the commentary to AS 11.56.700 indicates that the legislature did not intend that the crime of resisting arrest encompass "[m]ere non-submission to an arrest." We concluded that Eide's behavior did not constitute resisting arrest.
Id. at 502 (quoting Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 85, 1978 Senate Journal 1399).
Id.
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In this case, Nelson initially ran from Officer Wurst, but eventually stopped and let Wurst approach him. Although he did not follow directions to get on the ground, he did not fight Wurst when Wurst took him down. On the ground, he tucked his arms under his body to avoid being cuffed, but there was no evidence that he bucked or otherwise tried to dislodge Wurst from his back or tried to grab the officer in any way. There was no evidence that Nelson was aggressive toward Wurst; Nelson only attempted to keep his arms beneath him to avoid being cuffed and to pull the heroin out of his pocket.
Officer Wurst was able to cuff both of Nelson's hands behind his back within thirty to sixty seconds. Officer Wurst also said during his testimony that he thought Nelson "was just trying not to be handcuffed." He also stated that, when he took Nelson to the ground, Nelson "didn't want [Wurst] touching him," but that he "wasn't trying to fight [him]." Wurst described Nelson's conduct as "just trying to not be arrested." Even when we view the evidence in the light most favorable to the verdict, we conclude that there was insufficient evidence that Nelson used force to prevent his arrest.
Conclusion
We AFFIRM Nelson's conviction for second-degree misconduct involving a controlled substance. We REVERSE Nelson's conviction for resisting arrest.