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Noy v. State (8/29/2003) ap-1897

Noy v. State (8/29/2003) ap-1897

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID S. NOY,                 )
                              )            Court of Appeals No. A-
8327
                                 Appellant,     )           Trial
Court No. 4FA-01-3003 CR
                              )
                 v.           )
                              )                        O  P  I  N
I  O  N
STATE OF ALASKA,              )
                              )
                               Appellee.    )                [No.
                                1897  August 29, 2003]
                              )

          Appeal  from the District Court, Fourth  Judi
          cial  District,  Fairbanks, Jane  F.  Kauvar,
          Judge.

          Appearances:  William R. Satterberg, Jr., Law
          Offices  of   William  R.  Satterberg,   Jr.,
          Fairbanks,   for   Appellant.    Kenneth   M.
          Rosenstein,   Assistant   Attorney   General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for Appellee.

          Before:  Coats,  Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge

          A   jury  convicted  David  S.  Noy  of  violating   AS

11.71.060(a),  which  prohibits possession  of  less  than  eight

ounces of marijuana.  The marijuana was found in Noys home.   Noy

appeals  his  conviction,  arguing  that  he  was  convicted  for

engaging in conduct (possession of marijuana for personal use  in

ones  home)  that  is protected by the privacy provision  of  the

Alaska Constitution (article I, section 22).1

          We  agree that Noy may have been convicted for  conduct

that  is constitutionally protected.  As we explain here,  Alaska

citizens  have  the  right to possess less than  four  ounces  of

marijuana  in  their  home  for personal  use.   Accordingly,  we

reverse Noys conviction.  The State remains free to retry Noy  if

the  State believes it can prove that Noy possessed at least four

ounces of marijuana.

          Noy  also  claims that the district court  should  have

allowed  him to raise the defense of medical necessity.  However,

as we explain, the district court properly rejected Noys proposed

defense.


          Facts of the case

          The  North  Pole police contacted Noy at his  home  and

told  him  they  smelled growing marijuana.  The police  searched

Noys  house  and found approximately eleven ounces  of  harvested

marijuana,  consisting of buds, leaves, and stalks.   The  police

also  found five immature marijuana plants.  The police did  not,

however, find any scales or packaging material; nor was there any

other  evidence  that Noy was engaged in any  commercial  conduct

involving marijuana.

          Except  for the immature plants, all the plant material

including the buds, leaves, and stalks  was placed in a paper bag

and  sent to the state crime lab for identification and weighing.

The  immature plants were not tested, nor did they form  part  of

the  States  case.  Ultimately, Noy was charged  with  possessing

more than eight ounces of harvested marijuana.

          At  trial,  however, the State did not offer the  paper

bag  in  evidence.  Therefore, the jury had to rely on  testimony

and  photographs showing what the police had placed in  the  bag.

Based  on  the testimony and photographs, the paper bag obviously

contained stalks along with buds and leaves.  Among other things,

the jury was instructed that [m]arijuana means the seeds, leaves,

buds, and flowers of the plant, Cannabis, whether growing or not,

          but it does not include the stalks of the plants, or fiber

produced  from  the  stalks.  The jury found Noy  not  guilty  of

possessing  eight  ounces  or more of marijuana,  but  guilty  of

possessing less than eight ounces.


          Alaska   Statute  11.71.060(a)(1),  the  statute   that

          prohibits  possession  of less  than  eight  ounces  of

          marijuana  under  any  and all circumstances,  violates

          article  I,  section 22 of the Alaska  Constitution  as

          construed in Ravin v. State

          Noy was convicted under AS 11.71.060(a)(1), which makes

it  a  class  B  misdemeanor  to use or  display  any  amount  of

marijuana,  or  to  possess one or more preparations,  compounds,

mixtures,  or  substances containing marijuana  of  an  aggregate

weight  of  less than one-half pound.2  This statute criminalizes

conduct  that the Alaska Supreme Court has declared is  protected

under article I, section 22 of the Alaska Constitution.

          Article I, section 22 states:  The right of the  people

to  privacy  is  recognized  and shall  not  be  infringed.   The

legislature shall implement this section.

           In  Ravin,  the  Alaska Supreme Court held  that  this

provision  of  our constitution protects possession of  marijuana

for personal use in ones home.  The court acknowledged that there

is   no   fundamental  right  to  possess  or  ingest  marijuana.

Nevertheless,  the court held that article I,  section  22  gives

people a heightened expectation of privacy with respect to  their

personal activities within their home.3  The court held that this

heightened  right  of privacy encompass[ed]  the  possession  and

ingestion  of  ... marijuana in a purely personal, non-commercial

context  in  the home unless the state could show  that  such  an

intrusion  into  peoples  privacy bore a  close  and  substantial

relationship ... to a legitimate governmental interest  that  is,

unless the state proved that the public health or welfare [would]

in  fact  suffer  if  private possession of  marijuana  were  not

prohibited.4

          The   supreme  court  concluded  that  the  state   had

          demonstrated a substantial interest in regulating the use of

marijuana  by  drivers, in prohibiting the use  of  marijuana  by

children,  in  regulating the use or possession of  marijuana  in

public  places,  and  in  regulating the buying  and  selling  of

marijuana.5  The supreme court added that the state could validly

prohibit  [p]ossession at home of amounts of marijuana indicative

of  [an] intent to sell rather than possession for personal use.6

However, the court concluded that the state had shown no adequate

justification for ... prohibit[ing] possession of marijuana by an

adult for personal consumption in the home.7

          In  1975,  following  the supreme  courts  decision  in

Ravin, the Alaska Legislature amended AS 17.12 (the then-existing

marijuana laws) to take into account  the supreme courts  ruling.

The  legislature exempted marijuana from the normal penalties for

possession of depressant, hallucinogenic, or stimulant drugs8 and

enacted  two  special provisions governing marijuana  possession:

former AS 17.12.110(d) and (e).9

          Former   AS  17.12.110(d)  prohibited  public  use   of

marijuana,  possession of more than an ounce of  marijuana  in  a

public  place,  possession  of  any  amount  of  marijuana  while

operating  a  motor  vehicle or airplane, and possession  of  any

amount  of  marijuana  by  a  minor.   The  maximum  penalty  for

violating these provisions was a fine of $1,000.

          Former  AS  17.12.110(e) prohibited  possession  by  an

adult  of  one ounce or less of marijuana in a public place.   It

also prohibited possession by an adult of any amount of marijuana

for  personal  use in a non-public place.  This second  provision

clearly  encompassed possession of marijuana  in  ones  home  for

personal use  conduct that, in Ravin, the supreme court had  said

was   protected  from  governmental  intrusion.    However,   the

legislature  declared  that there was  no  criminal  penalty  for

violating subsection (e); rather, the offender faced a civil fine

of not more than $100.

          Seven  years  later,  in  1982, the  legislature  moved

Alaskas  drug laws from Title 17 to Title 11.  The provisions  of

          AS 17.12 dealing with marijuana were repealed, and new marijuana

provisions were enacted in AS 11.71.10  In this 1982 revision  of

the  marijuana laws, the legislature dropped the civil  fine  for

possession  of  marijuana for personal use in a non-public  place

thus ending any potential conflict with Ravin.

          Under   the   newly   enacted  AS   11.71.050(a)(3)(E),

possession of eight ounces or more of marijuana was made a  class

A  misdemeanor.   Under  the  newly enacted  AS  11.71.060(a)(4),

possession of four ounces or more of marijuana was made a class B

misdemeanor.11   The  legislature also made  it  a  violation  to

possess any amount of marijuana in a public place.12  However, no

statute  prohibited  possession  of  less  than  four  ounces  of

marijuana for personal use in a non-public place.

          In   other  words,  following  the  legislatures   1982

revision  of  the  marijuana laws, there was no penalty  (whether

criminal  or  civil)  for possessing less  than  four  ounces  of

marijuana  in  ones home for personal use.  But this  changed  in

1990.

          In  the  general election of 1990, the voters of Alaska

approved  a  ballot proposition that amended AS 11.71.060(a)  and

repealed  AS  11.71.070.13   Under  the  amended  (that  is,  the

current) version of AS 11.71.060(a), possession of any amount  of

marijuana  less  than  eight ounces is a class  B  misdemeanor.14

This is the statute that Noy violated.

          The  question  presented in this  case  is  whether  AS

11.71.060(a)  is constitutional to the extent that  it  prohibits

possession  of  marijuana by adults in their homes  for  personal

use.

          On  one  level,  the  answer is  straightforward.   The

Alaska  Supreme  Court ruled in Ravin that the right  of  privacy

codified  in  article  I,  section 22 of our  state  constitution

protects the right of adults to possess marijuana in their  homes

for  personal use.  When a statute conflicts with a provision  of

our  state  constitution, the statute must give way.15   Thus,  a

statute   which   purports  to  attach  criminal   penalties   to

          constitutionally protected conduct is void.

          On  a  deeper level, the question is whether the voters

of  Alaska  can,  through  the  initiative  process,  abrogate  a

constitutional ruling of the Alaska Supreme Court  in particular,

the  courts  ruling in Ravin that article I, section  22  of  our

state  constitution protects an adults right to possess marijuana

in  the  home  for personal use.  The answer to this question  is

found in the Alaska Constitution itself.  Article XII, section 11

states  that  the  people  of  this  state,  through  the  ballot

initiative  process, may exercise the law-making powers  assigned

to  the  legislature  (subject  to the  limitations  codified  in

article XI of the constitution).  That is, the initiative process

constitutes  a  method  by which the people  of  this  state  can

directly enact legislation.

          But  just  as the statutes enacted through  the  normal

legislative  process  must  not  violate  the  constitution,  the

statutes  enacted  by  ballot initiative  must  not  violate  the

constitution.16   Thus,  even  though  the  voters   enacted   AS

11.71.060(a)(1)    through    the   initiative    process,    the

constitutionality of this statute must be assessed  in  the  same

way  as  if  it  had been enacted through the normal  legislative

process.   And,  as  we have said, this statute  contravenes  the

constitutional  right of privacy as interpreted  by  our  supreme

court  in  Ravin   because  it declares that  any  possession  of

marijuana by adults in their homes for personal use is a crime.



          Alaska Statute 11.71.060(a) must be limited to preserve

its constitutionality

          We   have   concluded   that  AS   11.71.060(a)(1)   is

unconstitutional  to  the  extent that  it  proscribes  marijuana

possession  that,  under  the Ravin  decision,  is  protected  by

article I, section 22 of the Alaska Constitution.  But this  does

not  mean  that the statute is unconstitutional in its  entirety.

In  Ravin,  the  supreme court acknowledged that the  legislature

could validly prohibit possession of marijuana in the home if the

          marijuana was of such a quantity as to be indicative of

[possession  with]  intent  to sell rather  than  possession  for

personal  use.17   Thus, in Walker v. State18 we  held  that  the

legislature could validly prohibit possession of eight ounces  or

more  of  marijuana  even if the marijuana was  possessed  by  an

adult in their home for personal use.19

          The  question  inherent in this  analysis  is  whether,

consistent with Ravin, the legislature might validly prohibit all

instances of marijuana possession in some amount less than  eight

ounces.   As  we  noted in Walker, the Ravin  decision  does  not

elaborate on what amount of marijuana might constitute an  amount

... indicative of intent to sell.20

          Before  the  marijuana  laws  were  amended  by   voter

initiative  in  1990,  the Alaska Legislature  had  (by  statute)

defined  the  amount  of  marijuana that  adults  could  lawfully

possess  in  their  home for personal use.   Under  the  pre-1990

statutes  governing  marijuana  possession,  an  adult  could  be

prosecuted  for  possessing four ounces or more of  marijuana  in

their home for personal use.  Possession of less than this amount

was not a crime.21

          There    are    no   appellate   cases   testing    the

constitutionality of the legislatures four-ounce  dividing  line.

However,  Noy  has not argued that this four-ounce dividing  line

violates  Ravin.  We note, moreover, that article I,  section  22

entrusts  the  legislature  with the  duty  of  implementing  the

constitutional right of privacy.  Given the language  of  article

I,  section 22, and given the deference that we should pay to the

decision of a co-equal branch of government, we conclude that the

legislatures    four-ounce   dividing   line   is   presumptively

constitutional under Ravin.

          Although  we have declared that the current version  of

AS 11.71.060(a) is unconstitutional (because it prohibits conduct

that  is  constitutionally protected), we have a duty to preserve

the  statute to the extent possible  that is, to the extent  that

it  is  consistent with the constitution.22  The pre-1990 version

          of the statute contained a four-ounce ceiling on marijuana

possession in the home by adults for personal use  a ceiling that

is  presumptively  constitutional.   The  1990  voter  initiative

expanded  the scope of AS 11.71.060(a) by eliminating this  four-

ounce  ceiling and declaring that all possession of marijuana  by

adults in their homes for personal use was illegal.  In this  new

version,  the  statute  violates article I,  section  22  of  the

constitution.   To  make the statute conform to the  constitution

again, we must return it to its pre-1990 version.

          We  thus  conclude that, with respect to possession  of

marijuana by adults in their home for personal use (conduct  that

is  protected  under  the  Ravin  decision),  AS  11.71.060(a)(1)

remains constitutional to the extent that it prohibits possession

of four ounces or more of marijuana.  Restricted in this fashion,

AS 11.71.060(a)(1) remains enforceable.



          Noy is entitled to a new trial

          We have ruled that AS 11.71.060(a) validly continues to

prohibit  possession of four ounces or more  of  marijuana,  even

when  the possession is by adults in their home for personal use.

But  it is possible that the jury convicted Noy even though  they

believed  that  he  possessed less than this  amount.   For  this

reason, we must reverse Noys conviction.

            As   explained  earlier  in  this  opinion,  Noy  was

prosecuted under AS 11.71.050(a) for possessing eight  ounces  or

more  of  marijuana.  The jury acquitted Noy of this charge,  but

convicted him under AS 11.71.060(a) for possessing some amount of

marijuana less than eight ounces.  The problem is that  the  jury

was  not  asked to determine what lesser amount of marijuana  Noy

possessed.

          The  State  remains  free to retry  Noy  for  marijuana

possession.    However,  because  the  jury  acquitted   Noy   of

possessing  eight  ounces  or more of  marijuana,  the  State  is

collaterally  estopped from asserting that  Noy  possessed  eight

ounces or more.  The State can, however, claim that Noy possessed

at least four ounces of marijuana  enough to justify a conviction

under AS 11.71.060(a)(1) (as we now have limited it).


          Was  Noy  entitled  to raise a common  law  defense  of

medical necessity?

          At  trial, Noy argued that he was entitled to have  the

jury decide whether his possession of marijuana was justified  by

medical  necessity under AS 11.81.320.  The trial judge, District

Court  Judge  Jane  F.  Kauvar, ruled that Noy  could  not  avail

himself  of  the normal defense of necessity under AS  11.81.320.

Rather, Judge Kauvar ruled, Noy could only assert the affirmative

defense   for   the   medical  use  of  marijuana   codified   in

AS 11.71.090.

          Judge  Kauvars  ruling was based on the wording  of  AS

11.81.320.   This statute declares that the defense of  necessity

remains  available to the extent permitted by common  law  unless

[Title  11  or  another] statute defining  the  offense  provides

exemptions   or  defenses  dealing  with  the  justification   of

necessity  in  the  specific  situation  involved,  or  unless  a

legislative intent to exclude the justification of necessity  ...

otherwise plainly appear[s].23

          Judge  Kauvar  noted that the legislature  has  enacted

another  statute, AS 11.71.090, that specifically deals with  the

defense  of  medical necessity for the possession  of  marijuana.

Because  of  this, Judge Kauvar ruled that Noys claim of  medical

necessity  for his possession of marijuana had to be  raised  and

litigated  under  AS  11.71.090 rather  than  under  the  general

necessity defense codified in AS 11.81.320.

          This ruling was correct.  The general necessity defense

statute,  AS  11.81.320, expressly states that  a  more  specific

statute  takes  precedence.  Noy asserted that he had  a  medical

need  to  use  marijuana.  Alaska Statute 11.71.090  specifically

addresses this issue, and defines a separate affirmative  defense

of  medical  necessity  to  possess  marijuana.   Noys  claim  of

necessity  was  therefore  governed  by  the  specific  necessity

statute,  AS  11.71.090,  rather than by  the  general  necessity

          statute, AS 11.81.320.


          Jury instructions

          Noy  does  not contest the jury instructions that  were

given  at  his  trial.  However, because Noy may be  retried,  we

believe we should address the States contention that Judge Kauvar

inaccurately instructed the jury concerning how to determine  the

weight of harvested marijuana.

          Judge   Kauvar  properly  instructed  the   jury   that

[m]arijuana  means the seeds, leaves, buds, and  flowers  of  the

plant[.]24  But Judge Kauvar also instructed the  jury  that  the

aggregate weight of a live marijuana plant was the weight of  the

marijuana when reduced to its commonly used form.  Based on  this

instruction,  Noy urged the jury to consider only  the  aggregate

weight  of  the  buds in determining how much  marijuana  he  had

possessed.   But  the  commonly used form of  marijuana  is  only

relevant  when a person is charged with possessing live marijuana

plants.25    Noy  was  only  charged  with  possessing  harvested

marijuana.   Therefore, in the event of a retrial,  assuming  the

State again charges Noy with possessing only harvested marijuana,

the  district  court  should not instruct  the  jury  on  how  to

determine  the aggregate weight of live marijuana, or  allow  the

parties  to argue about the definition of the commonly used  form

of marijuana.


          Conclusion

          To  make AS 11.71.060(a)(1) consistent with article  I,

section 22 of the Alaska Constitution as interpreted in Ravin, we

must  limit the scope of the statute.  As currently written,  the

statute  prohibits  possession of any amount of  marijuana.   But

with  regard to possession of marijuana by adults in  their  home

for  personal  use,  AS 11.71.060(a)(1) must  be  interpreted  to

prohibit only the possession of four ounces or more of marijuana.

          The judgment of the district court is REVERSED.



_______________________________
     1 See Ravin v. State, 537 P.2d 494 (Alaska 1975).

     2 AS 11.71.060(a)(1) & (b).

     3 Ravin, 537 P.2d at 504-12.

     4 Id. at 504, 511.

     5 Id. at 511.

     6 Id.

     7 Id.

      8  Former AS 17.12.110(a), as amended by ch. 110,   1,  SLA
1975.

     9 Ch. 110,  1, SLA 1975.

      10  Ch. 45,  26, SLA 1982 (the repeal of AS 17.12)  and   2
(the enactment of AS 11.71).

      11  The 1982 version of AS 11.71.060(a) also prohibited use
of  marijuana  in a public place, or possession of one  ounce  or
more  of marijuana in a public place, or possession of any amount
of  marijuana  while operating a motor vehicle, or possession  of
any amount of marijuana by a person under 19 years of age.

     12 Former AS 11.71.070(a)(2).

     13 1990 Initiative Proposal No. 2,  1-2.

     14 AS 11.71.060(a)(1) and (b).

      15 See Falcon v. Alaska Public Offices Commn, 570 P.2d 469,
480 (Alaska 1977); Ravin, 537 P.2d at 511.

      16  See Alaskans for Legislative Reform v. State, 887  P.2d
960,  962, 966 (Alaska 1994); Citizens Coalition for Tort  Reform
v. McAlpine, 810 P.2d 162, 168 (Alaska 1991).

     17 537 P.2d at 511.

     18 991 P.2d 799 (Alaska App. 1999).

     19 Id.

     20 Id. (quoting Ravin, 537 P.2d at 511).

     21 See former AS 11.71.060 and AS 11.71.070.

      22  See  Hoffman v. State, 404 P.2d 644, 646 (Alaska  1965)
(ruling  that if a statute may be reasonably construed  to  avoid
unconstitutionality, the court must do so).

     23 AS 11.81.320(a)(1)-(2).

     24 See AS 11.71.900(14).

      25  See  Maness v. State, 49 P.3d 1128, 1134  (Alaska  App.
2002)  (quoting Gibson v. State, 719 P.2d 687, 690  (Alaska  App.
1986)) (the commonly used form language of AS 11.71.080 refers to
the  method of calculating the aggregate weight of live marijuana
plants).