Opinion
Court of Appeals No. A-8648.
October 20, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-03-211 Cr.
William R. Satterberg Jr., Fairbanks, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Kevin C. Shank appeals his conviction for fourth-degree controlled substance misconduct for engaging in the cultivation of marijuana. Shank was prosecuted under two theories: first, that he possessed twenty-five or more live marijuana plants, and second, that he knowingly kept or maintained a building used for felony marijuana cultivation. In this appeal, Shank contends that the evidence presented at his trial was legally insufficient to prove these charges. He also contends that the trial judge should have instructed the jury that Shank could not be convicted of the crimes charged against him if the State proved merely that Shank "was a landlord who knew of [marijuana cultivation] being perpetuated [ sic] in his rental [property]."
AS 11.71.040(a)(3)(G) and 040(a)(5), respectively.
For the reasons explained here, we conclude that the evidence presented at Shank's trial was sufficient to allow reasonable jurors to find Shank guilty. We further conclude that Shank's proposed jury instruction misstated the law, and thus the trial judge properly refused to give it.
Underlying facts
On September 11, 2002, the Alaska State Troopers in Fairbanks received a report from a resident of the Birchview Trailer Court that there was a strong smell of marijuana in the trailer court. Responding to this report, the troopers traced the marijuana smell to a trailer inhabited by Shawn Sunnyboy. The troopers obtained a search warrant for the trailer, and when they executed this warrant they found an extensive marijuana-growing operation.
The trailer actually belonged to Kevin Shank. When Shank was interviewed, he acknowledged that he paid the space rent and the utilities for the trailer. However, he told the troopers that he no longer lived in the trailer — that he had not lived there for the past six months. Instead, Shank had been allowing Sunnyboy to live there.
But during the troopers' search of the trailer, they found no indication that anyone was living there. The trailer contained no food, no dishes, and no curtains (although there was a couch, a television, and other electronics equipment in the living room). Rather, the trailer appeared to be devoted solely to the cultivation of marijuana.
The back bedroom of the trailer had been converted into a grow room; it had a fan that vented to the outside, track lighting, and hydroponics — as well as more than two dozen marijuana plants. The sink in the bathroom was covered with cardboard, and there was a large pile of loose, processed marijuana drying on this cardboard platform.
The other bedroom in the trailer did contain a bed, and there were two boxes containing some clothing and dishes. But that bedroom's wall was covered with wires and hangers that had marijuana drying from them. There was also a large pile of processed marijuana in that room.
The lint trap of the dryer had dried marijuana leaves in it. The kitchen had a pile of "High Times" magazines (a magazine devoted to marijuana growing). The entire trailer was "inundated" with the smell of marijuana.
The marijuana plants in the trailer were about ten weeks old. (According to the testimony at Shank's trial, this meant that the plants were about two or three weeks away from being harvested.)
The trailer park resident who had alerted the troopers to the marijuana smell told them that she had known both Shank and Sunnyboy for years. Her trailer was cater-corner from Shank's trailer, and she had frequently seen Shank and Sunnyboy together at the trailer park. According to this trailer park resident, no one was living at Shank's trailer on a regular basis, although both Shank and Sunnyboy (either singly or together) would visit the trailer for short periods of time.
During the month before she called the troopers, this trailer park resident saw Shank visit the trailer without Sunnyboy three or four times. In the week before she called the troopers, she saw Shank at the trailer two or three times. On these occasions, Shank entered the trailer and stayed for five or ten minutes.
John Fletcher, who owned the trailer park, confirmed that Shank was the one who paid the rent on the trailer. Fletcher had seen Shank's truck in front of the trailer "off and on", approximately twice a week, during the months before the troopers served the search warrant. Fletcher testified that he would see Shank's truck parked at the trailer in the morning, and the vehicle would still be parked in the same place a few hours later.
The sufficiency of the evidence to support Shank's convictions
In his brief to this Court, Shank contends that "there is no evidence that [he] was involved with Sunnyboy in growing 25 or more marijuana plants". Shank further contends that "[t]here is also no evidence that [he], as landlord, even knew that his tenant, Sunnyboy, was [growing 25 or more marijuana plants]" — and, thus, no evidence that Shank knowingly kept or maintained a building used for felony marijuana cultivation.
These assertions are obviously based on an interpretation of the evidence that favors Shank. But we are obliged to view the evidence (and all reasonable inferences that might be drawn from that evidence) in the light most favorable to upholding the jury's verdicts. Viewing the evidence in that light, reasonable jurors could conclude (1) that Shank was aware that marijuana was being grown on a large scale inside the trailer, (2) that Shank could have exercised his authority as landlord to stop this activity if he had wanted to, and (3) that Shank actively participated in growing this marijuana. Accordingly, the evidence presented at Shank's trial was sufficient to support his conviction under both of the State's theories of prosecution.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); see also Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Shank's proposed jury instruction
As noted above, one of the charges against Shank was that he knowingly kept or maintained a building used for a felony drug offense (in this case, felony marijuana cultivation). This charge was brought under AS 11.71.040(a)(5), commonly referred to as the "crack house" provision of Alaska's drug statutes.
As we explained in Dawson v. State, 894 P.2d 672 (Alaska App. 1995), prosecution under the "crack house" statute requires the State to prove (1) that the defendant controlled or had the authority to control the use or occupancy of the premises, and (2) that the defendant knew that the premises were being used for continuing illegal drug activity.
Dawson, 894 P.2d at 676.
Id. at 677. See AS 11.81.900(a)(2) for the definition of "knowingly".
However, as we later clarified in Wahrer v. State, 901 P.2d 442 (Alaska App. 1995), the State is not required to prove that the defendant actively controlled or even participated in the illegal drug activity. Nor need the State prove that the defendant shared the purpose of advancing the illegal drug activity. Rather, "the State must prove that the defendant knowingly permitted the illegal drug activity to take place on the premises." As we explained in Wahrer, this can be proved by either direct or circumstantial evidence:
Wahrer, 901 P.2d at 444.
Id.
Id.
The defendant's act of permitting the illegal drug activity may be proved by evidence of the defendant's express authorization, but it may also be proved by evidence that the defendant allowed the illegal drug activity to proceed by tacit consent or by not hindering it or by taking no steps to prevent it.
Wahrer, 901 P.2d at 444 (internal quotation omitted).
Toward the end of Shank's trial, his attorney asked the trial judge to give the following jury instruction:
You are instructed that a person has no legal duty to report a crime perpetuated [ sic] by another person. Therefore, Kevin Shank cannot be convicted of a crime if you find that he was a landlord who knew of crimes being perpetuated [ sic] in his rental residence.
The trial judge agreed to give the first sentence of Shank's proposed instruction, but she declined to give the second sentence — the sentence that instructed the jury to acquit Shank if the State proved only (1) that Shank was the landlord of the trailer and (2) that Shank knew that marijuana cultivation was being conducted inside the trailer.
On appeal, Shank contends that, without this second sentence, the jury would conclude that "strict liability attache[s] to [a] landlord for the conduct of a tenant". Shank claims that his second sentence was necessary to prevent the jury from erroneously concluding that Shank could be convicted based merely on the fact that he was the landlord of the trailer, even though he might be ignorant of what was going on inside the trailer.
But this is not what Shank's proposed instruction says. Rather, the proposed instruction would have expressly directed the jury to acquit Shank even though he knew that the trailer was being used for marijuana cultivation. As can be seen from our recapitulation of the Dawson and Wahrer decisions, Shank's proposed jury instruction was decidedly misleading. If, in fact, Shank knew that the trailer was being used for the ongoing cultivation of marijuana, and if Shank (as landlord of the trailer) had the authority to control the use or occupancy of the premises, then he could properly be convicted of violating AS 11.71.040(a)(5).
Thus, the trial judge correctly declined to give Shank's proposed jury instruction.
Conclusion
The judgement of the superior court is AFFIRMED.