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Wiglesworth v. State (3/11/2011) ap-2300

Wiglesworth v. State (3/11/2011) ap-2300

                                               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 

BILLYJACK WIGLESWORTH, 
                                                            Court of Appeals No. A-10462 
                                Appellant,                 Trial Court No. 3PA-07-1322 Cr 

                        v. 
                                                                    O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                   No. 2300    -    March 11, 2011 

                Appeal from the Superior Court, Third Judicial District, Palmer, 
                Vanessa White, Judge. 

                Appearances:      David E. George, Anchorage, for the Appellant. 
                Eric   A.  Ringsmuth,     Assistant   Attorney    General,   Office   of 
                Special Prosecutions and Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                BillyJack Wiglesworth appeals his convictions for first-degree burglary and 

six counts of second-degree controlled substance misconduct.                He argues that the State 

presented insufficient evidence at his trial to support the jury's finding that he committed 

burglary.    He also argues that he should not have received a separate conviction and 

sentence for his act of burglary - that his burglary conviction should merge with his 

----------------------- Page 2-----------------------

drug   convictions.       For   the   reasons   explained   in   this   opinion,   we   conclude   that   the 

evidence was sufficient to support Wiglesworth's burglary conviction, and we further 

conclude   that,   under   Alaska   law,   Wiglesworth's   crime   of   burglary   is   a   separately 

punishable offense, distinct from his drug offenses. 

                 The more difficult issues in this appeal arise from Wiglesworth's claim that 

all   six   of   his   second-degree   controlled   substance   misconduct   convictions   should   be 

merged into a single conviction. 

                 The   statute   defining   the   offense   of   second-degree   controlled   substance 

misconduct, AS 11.71.020, prohibits several types of conduct.                    One subsection of the 

statute   prohibits   the   manufacturing   of   methamphetamine;  see   subsection   (a)(2)(A). 

Another subsection of the statute prohibits the manufacturing of the immediate precursor 

chemicals that are created during the process of manufacturing methamphetamine; see 

subsection (a)(2)(B).  Yet another subsection of the statute prohibits the possession (as 

opposed to the manufacturing) of these precursor chemicals if the possessor intends to 
use them to create methamphetamine; see subsection (a)(3). 1 

    1   The general definition of "immediate precursor" is found in AS 11.71.900(12): 

         "immediate precursor" means a substance which is by statute or regulation designated 
    as the principal compound commonly used or produced primarily for use, and which is 
    an immediate chemical intermediary used or likely to be used in the manufacture of a 
    controlled     substance,   the   control   of   which  is   necessary   to   prevent,   curtail,   or   limit 
    manufacture of that controlled substance[.] 

In addition, AS 11.71.150(f) lists specific precursors of methamphetamine: 

    (f) [Controlled Substance] Schedule IIA includes, unless specifically excepted or unless 
listed in another schedule, any material, mixture, or preparation which contains any quantity 
of the following substances: 
         (1) immediate precursor to amphetamine and methamphetamine:  phenylacetone also 
                                                                                             (continued...) 

                                                    - 2 -                                               2300
 

----------------------- Page 3-----------------------

                In addition to these prohibitions on methamphetamine and its immediate 

chemical precursors, the statute also prohibits the possession of over two dozen "listed 

chemicals"      -   in  general,   chemical   substances   that   are    the  raw   materials   used    in 

manufacturing methamphetamine - if the possessor intends to use these listed chemicals 

to   manufacture   methamphetamine   or   any   of   its   immediate   chemical   precursors;  see 

subsection (a)(4).     (The list of these chemicals is found in AS 11.71.200.) 

                Wiglesworth        was   convicted    of  six   separate   counts    of  second-degree 

controlled substance misconduct, based on various subsections of the statute. 

                One of Wiglesworth's counts was for possessing iodine (one of the listed 

chemicals) on May 22, 2007 at a beach on the Little Susitna River. 

                Wiglesworth was convicted of two additional counts, one for possessing 

iodine and one for possessing acetone (another of the listed chemicals) in a vehicle that 

was stopped by the police on May 27, 2007. 

                Wiglesworth was convicted of yet another count of controlled substance 

misconduct for possessing iodine and red phosphorus (another of the listed chemicals) 

at a cabin near Willow on June 4, 2007.  (Unlike Wiglesworth's two separate counts for 

possessing   iodine   and   acetone   on   May   27th,   the   State   did   not   pursue   the   June   4th 

possession of iodine and red phosphorus in separate counts.) 

                Finally,   Wiglesworth   was   convicted   of   two   more   counts   of   controlled 

substance     misconduct   for   possessing   two   different   immediate   precursor   chemicals 

(amphetamine and pseudoephedrine) at the same cabin on the same date, June 4th. 

                Wiglesworth argues that he is guilty of essentially one continuing attempt 

to manufacture methamphetamine, and that his possession of the various listed chemicals 

and the two methamphetamine precursor chemicals simply reflects a single, ongoing 

    1   (...continued)
 

    known as phenyl-2-propanone; P2P; benzyl methyl ketone; [and] methyl benzyl ketone[.]
 

                                                  - 3 -                                              2300 

----------------------- Page 4-----------------------

criminal effort.  For this reason, Wiglesworth contends that he should be convicted and 

sentenced for only one merged count of second-degree controlled substance misconduct 

(based on the jury's guilty verdicts on the six counts). 

                The State responds that Wiglesworth was properly convicted of a separate 

count for each individual listed chemical and for each individual precursor chemical. 

The State also argues that Wiglesworth could properly be convicted of three separate 

crimes for possessing the same listed chemical - iodine - because Wiglesworth's 

possession of iodine occurred on three separate dates and locations. 

                For   the   reasons   explained   in   this   opinion,   we   conclude   that   a   person 

engaged in a single act of manufacturing methamphetamine is guilty of only one count 

of second-degree controlled substance misconduct, even though the defendant might, in 

the process, manufacture or possess two or more immediate precursor chemicals, or 

might possess two or more listed chemicals.              We further conclude that a defendant's 

continuing possession of precursor chemicals, or the defendant's continuing possession 

of a supply of "listed" chemicals, constitutes only one offense, even though the State 

presents evidence that the defendant possessed those same chemicals at different times 

and/or different places. 

                Finally, we conclude that if the State believes that the facts of a particular 

case justify the entry of two or more separate convictions (under the rules stated in the 

preceding paragraph), the State must prove the facts supporting the separate convictions 

to the jury beyond a reasonable doubt. 

        Underlying facts 

                Wiglesworth, along with three confederates (Jess Klein, Karri Embach, and 

Anafesa   Galaktionoff),   engaged   in   the   manufacture   of   methamphetamine   using   the 

                                                 - 4 -                                             2300
 

----------------------- Page 5-----------------------

"ephedrine reduction" method (commonly known as the "REI" method).  This method 

involves the use of several chemicals, including iodine, red phosphorus and ephedrine. 

                Under     this  method,    pseudoephedrine       (a  methamphetamine         precursor 

chemical contained in various cold medications) is extracted from the cold medications. 

Two of the "listed" chemicals - red phosphorus and hydriodic acid (an aqueous solution 

of   hydrogen   iodide)   -   are   then   used   to   chemically   alter   the   pseudoephedrine   into 

methamphetamine. 

                Of the four defendants in this case, only Wiglesworth knew how to make 

methamphetamine, and he directed the manufacturing operation. 

                On or about May 20, 2007, Wiglesworth and his confederates made a trip 

to Anchorage to buy the supplies needed to manufacture methamphetamine.                      The next 

day, the group went to a beach of the Little Susitna River near Houston.               At the beach, 

Klein,    Embach,      and   Galaktionoff     set  to  work    extracting    red   phosphorus      from 

matchbooks, while Wiglesworth readied the iodine.  However, while Wiglesworth and 

his friends were engaged in these efforts, a man drove up in a truck and announced that 

he was about to close the gate that controlled road access to the beach.                  The group 

packed up their materials.  Then, before leaving the beach, they set fire to the trash from 

their manufacturing operation. 

                On May 22nd, police officers (acting on a tip from a Houston resident) 

went   to   the   Little   Susitna   River   to   investigate   the   debris   at   the   beach. This   debris 

included   discarded   matchbook   covers   and   bottles   of   iodine   tincture.     The   officers 

concluded      that   this  debris  was  the  trash   from   a  methamphetamine        manufacturing 

operation.    Also among the debris was a receipt with the name "Jess Klein". 

                In the meantime, Wiglesworth and his friends decided to continue their 

methamphetamine manufacturing efforts at a cabin near Willow; Karri Embach knew 

about this cabin because it was owned by her ex-boyfriend's father.                Wiglesworth and 

                                                 - 5 -                                            2300
 

----------------------- Page 6-----------------------

his   three   friends   stayed   at   the   cabin   for   several   days. During   this   time,   they   both 

manufactured and ingested methamphetamine. 

                At Wiglesworth's trial, Jess Klein testified that, at some point during these 

several days, the group left the cabin to buy more supplies and to drop off Galaktionoff, 

who wanted to go elsewhere. The remaining three people - Wiglesworth, Embach, and 

Klein - returned to the cabin and continued making methamphetamine. 

                The group left the cabin again on May 27th, traveling in Klein's Toyota 

Land Cruiser.       While they were riding in the Land Cruiser, they were stopped by the 

Wasilla police.   The police officers observed items in the car that appeared to be related 

to   the  manufacture      of  methamphetamine,        including    various    listed  chemicals    and 

methamphetamine residue. The police impounded the vehicle, but they let Wiglesworth, 

Embach,   and   Klein   leave.     The   police   recovered   methamphetamine,   the   precursor 

chemicals of amphetamine and pseudoephedrine, and the listed chemicals iodine and 

acetone from the Land Cruiser. 

                On June 3, 2007, Wiglesworth, Embach, and Klein met again, this time 

joined by Wiglesworth's friend, Shannon Lovell. Wiglesworth apparently wanted to go 

back   to   the   cabin   and   try   to   clean   up   the   mess   caused   by   their   methamphetamine 

manufacturing activities. 

                On June 4, 2007, Wiglesworth, Embach, Klein, and Lovell were riding in 

Lovell's Chevy pickup truck when they were stopped by the Houston police.                      Again, 

police observed methamphetamine-related items in the truck, and they impounded the 

truck.   This time, however, the police arrested Wiglesworth and the other occupants. 

                Following this arrest, Lovell told the police about the cabin near Willow 

where Wiglesworth had been manufacturing methamphetamine.                      Lovell led the police 

to the cabin, and the police then obtained a warrant to search the premises.  This search 

revealed bottles of iodine tincture, evidence of red phosphorus and pseudoephedrine, and 

                                                 - 6 -                                            2300
 

----------------------- Page 7-----------------------

other supplies and equipment used to manufacture methamphetamine.                      Various items 

from the cabin tested positive for methamphetamine, amphetamine, psuedoephedrine, 

iodine, and phosphorus. 

                Based   on   these   events,   Wiglesworth   was   convicted   of   burglarizing   the 

cabin, and he was also convicted of six counts of second-degree controlled substance 

misconduct. 

                One of the drug counts was based on the iodine found among the debris on 

the beach on May 22nd.        Two of the drug counts were based on the iodine and acetone 

found in the Land Cruiser on May 27, 2007.                A fourth drug count was based on the 

combination of iodine and red phosphorus found at the cabin on June 4, 2007.  And the 

fifth and sixth drug counts were based on the amphetamine and pseudoephedrine found 

at the cabin. 

        Wiglesworth's claim that the evidence presented at his trial is insufficient 
        to support his burglary conviction 

                Wiglesworth contends that the evidence presented at his trial is insufficient 

to   support   the   jury's   verdict   finding   him   guilty   of   burglarizing   the   cabin. When   a 

defendant claims that the evidence is insufficient to support a criminal conviction, we 

must view the evidence (and all reasonable inferences to be drawn from that evidence) 
in the light most favorable to upholding the verdict. 2 

                Viewing the evidence in that light, the evidence shows that Karri Embach 

(Wiglesworth's confederate) told Wiglesworth about the cabin and suggested that it was 

a   potential   site   for   their   methamphetamine   lab.  The   cabin   was   owned   by   Marshal 

Johnson, the father of a man whom Embach had previously dated.                    However, Embach 

    2   See, e.g., Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009). 

                                                 - 7 -                                              2300 

----------------------- Page 8-----------------------

had broken up with Johnson's son several months before, and she had not been to the 

cabin for several months. 

                Embach stated that she rationalized their use of the cabin because she had 

lived there before.      However, neither Embach nor any of the other defendants actually 

had   permission   to   use   the   cabin;   Embach   admitted   as   much   at   Wiglesworth's   trial. 

Embach further testified that she never told Wiglesworth that she had permission to use 

the cabin.   Rather, she told him, "nobody's going to ever think to look for us there." 

                There was a sign outside the cabin with the name "Johnson".  The hasp and 

lock assembly had been pried off the cabin door.  Although Embach stated that someone 

else had broken the lock, and that the cabin was already open when she and Wiglesworth 

arrived, the jury was not obliged to credit that testimony. 

                All of this evidence, viewed in the light most favorable to the jury's verdict, 

is sufficient to convince reasonable jurors, beyond a reasonable doubt, that Wiglesworth 

burglarized the cabin (i.e., that he and his friends broke into the cabin, intending to 

commit a crime within it). Therefore, the evidence is sufficient to support Wiglesworth's 

burglary conviction. 

        Whether   Wiglesworth   should   have   received   a   separate   conviction   for 
        burglary 

                Wiglesworth argues that even if the evidence supports the conclusion that 

he burglarized the cabin, he should not have received a separate conviction and sentence 

for burglary.   Wiglesworth points out that, according to the evidence, he broke into the 

cabin for the purpose of manufacturing methamphetamine, and Wiglesworth further 

points out that he was convicted and sentenced for several methamphetamine-related 

offenses (i.e., the six counts of second-degree controlled substance misconduct).  Based 

                                                 - 8 -                                             2300
 

----------------------- Page 9-----------------------

on this, Wiglesworth contends that it is improper to give him a separate conviction and 

sentence for burglary. 

                Both the Alaska Supreme Court and this Court have addressed the question 

of whether a defendant can properly receive separate convictions and sentences for both 

an act of burglary and the ulterior crime(s) that motivated the burglary.                  The answer 

under Alaska law is yes - separate convictions and sentences are proper.  See Mead v. 

State, 489 P.2d 738, 741-42 (Alaska 1971); Young v. State, 848 P.2d 267, 272 (Alaska 

App. 1993); Reynolds v. State, 706 P.2d 708, 711 (Alaska App. 1985). 

                Accordingly, we uphold Wiglesworth's separate conviction and sentence 

for burglary. 

                We     turn   now     to  the   more    difficult   questions     that  are   raised   by 

Wiglesworth's argument that he should not have received six separate convictions and 

sentences for second-degree controlled substance misconduct. 

        Why we conclude that the possession of two or more methamphetamine 
        precursor   chemicals   and/or   "listed"   chemicals   will   support   only   one 
        conviction     for   second-degree      controlled    substance     misconduct     if  the 
        defendant      possesses     these    chemicals     in  connection      with   a   single 
        methamphetamine manufacturing operation 

                To resolve Wiglesworth's appeal, we must decide whether the second- 

degree   controlled   substance   misconduct   statute   was   intended   to   authorize   separate 

convictions   and   sentences   for   each   separate   precursor   chemical   and   each   separate 

"listed"   chemical   that   the   police   find   at   a   single   methamphetamine   manufacturing 

operation     -    or  whether,    instead,   a  defendant's     possession     of  various    precursor 

chemicals   and   "listed"   chemicals   during   the   course   of   a   single,   continuing   effort   to 

                                                  - 9 -                                             2300
 

----------------------- Page 10-----------------------

manufacture methamphetamine should be viewed as only one offense for purposes of 

conviction and punishment. 

                In State v. Dunlop, 721 P.2d 604 (Alaska 1986), the Alaska Supreme Court 

addressed the question of whether a defendant who violates a statute two or more times 

during a single criminal episode should receive multiple convictions and punishments, 

or only one.  The supreme court suggested that the answer often lies in deciding whether 

the offense focuses on the culpable mental state with which the defendant acted or, 

instead, whether the offense focuses on the consequences of the defendant's conduct. 

Id., 721 P.2d at 608-09. 

                For offenses involving assaultive conduct, Alaska law often focuses on the 

consequences of the defendant's conduct - meaning that the defendant can properly 

receive separate convictions and sentences for each person killed, injured, or placed in 

fear   of injury   by   the   defendant's   assaultive   act. See Dunlop,   721   P.2d   at   609-610; 

Cooper      v.  State,  595   P.2d   648,   650   (Alaska    1979)   (upholding     separate   assault 

convictions when a defendant's threatening conduct with a weapon placed three people 

in fear of imminent serious injury). 

                Similarly, in Knutsen v. State, 101 P.3d 1065, 1071 (Alaska App. 2004), 

this   Court   upheld    eight  separate   convictions     for  indecent   photography      when    the 

defendant secretly videotaped the activities in a women's dressing room - and, in doing 

so, violated the privacy of eight individuals. 

                On the other hand, for offenses involving theft, Alaska follows the "single 

larceny" doctrine - the rule that the defendant's act of taking property belonging to 

different owners at the same time and place generally constitutes only a single crime of 

theft, even though this act of theft affects two or more victims. Nelson v. State, 628 P.2d 

884, 896-97 (Alaska 1981); Martin v. State, 797 P.2d 1209, 1218 (Alaska App. 1990). 

In other words, theft offenses generally focus on the fact that the defendant has engaged 

                                                -  10 -                                          2300
 

----------------------- Page 11-----------------------

in an episode of stealing, rather than on the number of people who are deprived of their 

property as a result of this episode. 

                  Our   task   in   the   present   case     is   to   identify   the   gravamen   or   focus   of 

subsections (2) through (6) of AS 11.71.020(a) - the provisions of the statute dealing 

with methamphetamine and   the   chemicals that are either used or created during the 

process of manufacturing methamphetamine. 

                  The text of these portions of the statute is quite lengthy, so we are placing 
that   text   in   a   footnote   rather   than   in   the   main   text   of   our   opinion. 3  However,   we 

     3   Here are the pertinent provisions of AS 11.71.020: 

     (a)  Except   as    authorized     in  AS    17.30,   a  person    commits     the   crime   of  misconduct 
involving a controlled substance in the second degree if the person 
         .   .  . 
         (2) manufactures any material, compound, mixture, or preparation that contains 
              (A) methamphetamine, or its salts, isomers, or salts of isomers; or 
              (B) an immediate precursor of methamphetamine, or its salts, isomers, or salts of 
         isomers; 
         (3) possesses an immediate precursor of methamphetamine, or the salts, isomers, or 
     salts   of   isomers   of   the   immediate   precursor   of   methamphetamine,   with   the   intent   to 
     manufacture        any     material,     compound,        mixture,     or    preparation      that   contains 
     methamphetamine, or its salts, isomers, or salts of isomers; 
         (4) possesses a listed chemical with intent to manufacture any material, compound, 
     mixture, or preparation that contains 
              (A) methamphetamine, or its salts, isomers, or salts of isomers; or 
              (B) an immediate precursor of methamphetamine, or its salts, isomers, or salts of 
         isomer; 
         (5) possesses methamphetamine in an organic solution with intent to extract from it 
     methamphetamine or its salts, isomers, or salts of isomers; or 
         (6) under circumstances not proscribed under AS 11.71.010(a)(2), delivers 
              (A) an immediate precursor of methamphetamine, or the salts, isomers, or salts of 
         isomers  of   the   immediate precursor  of   methamphetamine, to   another  person   with 
         reckless   disregard      that   the  precursor   will  be   used     to  manufacture      any   material, 
                                                                                                   (continued...) 

                                                      -  11 -                                                 2300
 

----------------------- Page 12-----------------------

     3   (...continued)
 

         compound,   mixture,   or   preparation          that   contains   methamphetamine,   or   its   salts,
 
         isomers, or salts of isomers; or
 
             (B)  a   listed   chemical   to   another   person   with   reckless   disregard   that   the   listed 
         chemical will be used to manufacture any material, compound, mixture, or preparation 
         that contains 
                  (i) methamphetamine, or its salts, isomers, or salts of isomers; 
                  (ii) an immediate precursor of methamphetamine, or its salts, isomers, or salts 
             of isomers; or 
                  (iii) methamphetamine or its salts, isomers, or salts of isomers in an organic 
              solution.
 
         .   .  . 
 
     (c) In this section, "listed chemical" means a chemical described under AS 11.71.200. 

And here is the text of AS 11.71.200, "Listed chemicals": 

     Listed chemicals are chemicals that are used in manufacturing a controlled substance in 
violation of this chapter.       Listed chemicals include 
     (1) anthranilic acid, its esters, and its salts; 
     (2) benzaldehyde; 
     (3) benzyl cyanide; 
     (4) ephedrine, its salts, optical isomers, and salts of optical isomers; 
     (5) ergonovine and its salts; 
     (6) ergotamine and its salts; 
     (7) N-acetylanthranilic acid, its esters, and its salts; 
     (8) nitroethane; 
     (9) norpseudoephedrine, its salts, optical isomers, and salts of optical isomers; 
     (10) phenylacetic acid, its esters, and its salts; 
     (11) phenylpropanolamine, its salts, optical isomers, and salts of optical isomers; 
     (12) piperidine and its salts; 
     (13) pseudoephedrine, its salts, optical isomers, and salts of optical isomers; 
     (14) 3,4-methylenedioxyphenyl-2-propanone; 
     (15) any salt, optical isomer, or salt of an optical isomer of the following chemicals: 
         (A) ethylamine; 
                                                                                                   (continued...) 

                                                      - 12 -                                                  2300
 

----------------------- Page 13-----------------------

conclude that this text is important, because it illuminates the legislative purpose behind 

the statute. 

                As we have already explained, the pertinent portions of the statute make it 

a crime to manufacture methamphetamine, but they also make it a crime to manufacture 

a   chemical    precursor    of  methamphetamine,        or  to  possess   one  of  these   chemical 

precursors with the intent to manufacture methamphetamine.  In addition, these portions 

of the statute make it a crime for a person to possess a "listed chemical" (the various 

chemicals      that  are  the   "raw   materials"    used    in  the  process    of  manufacturing 

    3   (...continued) 

        (B) hydriodic acid; 
        (C) isosafrole; 
        (D) methylamine; 
        (E) N-methylephedrine; 
        (F) N-methylpseudoephedrine; 
        (G) piperonal; 
        (H) propionic anhydride; 
        (I) safrole; 
    (16) acetic anhydride; 
    (17) acetone; 
    (18) anhydrous ammonia; 
    (19) benzyl chloride; 
    (20) ethyl ether; 
    (21) hydriotic acid; 
    (22) hydrochloric gas; 
    (23) hydrophosphoric acid; 
    (24) iodine and crystal iodine; 
    (25) lithium metal; 
    (26) potassium permanganate; 
    (27) red phosphorous; 
    (28) toluene; 
    (29) 2-butanone (or methyl ethyl ketone). 

                                               -  13 -                                          2300
 

----------------------- Page 14-----------------------

methamphetamine)   if   the   person   intends   to   use   the   listed   chemical   to   manufacture 

methamphetamine or one of the precursor chemicals. 

                Taken together, the apparent purpose of these statutory provisions is to 

define the offense in such a way that it encompasses various acts which otherwise would 

be punishable only as an attempt to manufacture methamphetamine (i.e., conduct that 

would otherwise be punishable as a lower degree of offense; see AS 11.31.100(d)), and 

so   that   the  offense   encompasses      certain  additional   types    of   conduct   which   might 

otherwise not be punishable at all - conduct that might otherwise be viewed as merely 

preparation for an attempt to manufacture methamphetamine. 

                In other words, the apparent intent of the statute is to allow the government 

to arrest and prosecute methamphetamine manufacturers during the early stages of the 

manufacturing process, and to prosecute these offenders for a completed crime rather 

than an attempt. 

                This interpretation of the statute is borne out by the minutes of the House 

Judiciary Committee from February 1999, when the Committee was considering House 

Bill   3   (21st   Legislature)   -  the   proposal   to   reclassify   the   crime   of   manufacturing 

methamphetamine from third-degree controlled substance misconduct to second-degree 

controlled substance misconduct. During the Judiciary Committee's meeting of February 

17, 1999, the sponsor of House Bill 3 (Representative Tom Brice) told the Committee: 

                        Currently, state statutes prohibit law enforcement from 
                arresting people [who are] making methamphetamines until 
                they    are  actually   producing     [the]  drug.    The    chemicals 
                involved [in this process] are dangerous, as is the production 
                process     [itself].   [House      Bill   3]  will   criminalize     the 
                possession      of  certain   chemicals     used   in   manufacturing 
                methamphetamines, giving law enforcement the ability to be 
                proactive     when    fighting   methamphetamine        production     in 
                Alaska. 

                                                 -  14 -                                           2300
 

----------------------- Page 15-----------------------

Representative Brice added that employees of the Department of Public Safety (that is, 

state troopers) asked him to introduce this bill because they were unable to make an 

arrest until the people running a methamphetamine lab actually started "cooking" the 

drug.  Ibid. 

                The    discussion    that  followed     Representative     Brice's   remarks    further 

highlighted the fact that, by criminalizing the possession of precursor chemicals and 

listed chemicals, the legislature was trying to authorize law enforcement officials to 

intervene when the methamphetamine manufacturing process was still in the attempt 

stage.   A major topic of the discussion was whether the legislature should adopt a list of 

proscribed chemicals at all.      Several legislators and witnesses thought that codifying a 

list of chemicals might be too restrictive, and they discussed alternative ways in which 

the legislature might criminalize "the attempt".            See Minutes of the House Judiciary 

Committee for February 17, 1999, at Log Nos. 1150 and 1566. 

                Other committee members questioned the fact that House Bill 3 made the 

possession of precursor chemicals and listed chemicals the same degree of offense as the 

completed manufacturing of methamphetamine.                 Some legislators remarked that they 

found it unusual for an attempt to be punished as severely as the completed crime.  Id. 

at Log Nos. 0661 and 1272. 

                Overall, the Judiciary Committee's discussion of House Bill 3 (which was 

ultimately enacted as SLA 2000, ch. 73) shows that the committee members viewed the 

amendments to AS 11.71.020 as comprising a type of attempt statute - even though the 

degree   of   offense   and   the   prescribed   penalty   range   would   be   the   same   for   both   the 

attempt to manufacture methamphetamine and the completed crime. 

                                                -  15 -                                           2300
 

----------------------- Page 16-----------------------

                (Compare   AS   11.41.510(a),   which   defines   the   crime   of   second-degree 

robbery   as   either   the   forcible   taking   of   property   or   the   attempted   forcible   taking   of 

property.) 

                Because this is the underlying purpose of the statute, the gravamen of the 

offense is the defendant's act of assembling the necessary raw materials, and/or the act 

of assembling or manufacturing the precursor chemicals, for the ultimate purpose of 

manufacturing        methamphetamine.          The    legislature    did  not   perceive    a   separate, 

independent societal interest in the defendant's possession of each separate chemical, or 

in the defendant's accomplishment of each separate stage in the manufacturing process. 

Rather,     the   societal   interest  at  stake   is  to  prevent    the   illicit  manufacturing      of 

methamphetamine. 

                To put the matter in a slightly different way:           if a defendant's possession 

of   each   individual   precursor   chemical   and   listed   chemical   constituted   a   separately 

punishable violation of the statute, then a defendant who completed the manufacturing 

process (and who used up the precursor chemicals and listed chemicals in this process) 

would be guilty of only one class A felony (for manufacturing methamphetamine), while 

another defendant who was intercepted in the middle of the manufacturing process - 

and who never actually manufactured any methamphetamine - might be guilty of up 

to a dozen or more class A felonies, depending on how many precursor chemicals and 

listed chemicals the police found at the manufacturing site.               This result appears to be 

illogical and unsupported by any social policy. 

                Accordingly,   we   conclude   that   a   defendant   who   violates   two   or   more 

provisions of AS 11.71.020(a)(2) - (6) during the course of a single, continuing effort 

to manufacture methamphetamine is guilty of only one act of second-degree controlled 

substance misconduct for purposes of conviction and punishment. 

                                                 -  16 -                                            2300
 

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                We do not intend to restrict the State's ability to charge the defendant with 

different counts based on different theories of how the defendant's conduct violated the 

statute.   That is, the State may (if it wishes) charge a separate count based on each 

precursor chemical or listed chemical found in the defendant's possession.                  But even if 

the jury finds the defendant guilty of all these different counts, the jury's verdicts must 

be merged into a single conviction and sentence for second-degree controlled substance 

misconduct. 

        The potential significance of the fact that a defendant possesses precursor 
        chemicals and/or listed chemicals at different times and places 

                We     next   address   the  question    of   whether   the   "single   conviction    and 

sentence" rule should apply in cases where the defendant possesses precursor chemicals 

and/or listed chemicals at different times in the same location, or in different locations 

at the same time, or - as in Wiglesworth's case - in different locations at different 

times. 

                Our basic approach to this question is governed by two principles. The first 

of these principles is the conclusion we reached in the preceding section of this opinion: 

subsections   (2)   through   (6)   of   AS   11.71.020(a)   define   a   species   of   attempt.     If   a 

defendant's conduct comprises a single attempt, then the offense should remain a single 

offense even though the defendant's possession of various chemicals might occur at 

different times or in different places. 

                The second of these principles is that "possession" is a continuing course 

of conduct, not a series of discrete acts - and, thus, when an offense is defined in terms 

of the defendant's possession of an article or substance, courts normally construe the 

defendant's continuing possession of the article or substance as a single offense, even 

                                                 -  17 -                                            2300
 

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though   the   defendant   may   possess   that   article   or   substance   at   different   locations   at 

different times. 

                 We applied this principle in Simmons v. State, 899 P.2d 931 (Alaska App. 

1995).      The defendant in Simmons was convicted of two counts of being a felon in 

possession of a concealable firearm (a pistol).              The evidence showed that Simmons 

received the pistol in the mail in mid-April 1990, and that shortly thereafter he took the 

pistol to a shooting range and fired it.          Three months later, in July, the police executed 

a search warrant for Simmons's house; they found the pistol and seized it.  Simmons was 

charged with two separate offenses:  one for possessing the pistol in April, and the other 
for possessing the pistol in July. 4 

                 On appeal, Simmons argued that he could not lawfully be convicted of two 

separate offenses for his continuing possession of the pistol.  We agreed.  Id., 899 P.2d 

at 935-37. 

                 We   noted   that   "the   element   of   possession   implies   continuity"   -   that 
possession is "a course of conduct, not an act". 5             We further noted the "well settled" 

doctrine that when a continuing course of conduct is statutorily defined as one offense, 

"[this] single crime cannot properly be charged as multiple crimes occurring at [discrete] 

moments in time" - that prosecutors can not circumvent the double jeopardy clause by 

"dividing a single crime into a series of temporal or spatial units".               Simmons, 899 P.2d 

at 936, quoting Brown v. Ohio, 432 U.S. 161, 169; 97 S.Ct. 2221, 2227; 53 L.Ed.2d 187 

(1977). 

                 For these reasons, we held that a defendant can not be convicted of multiple 

counts   alleging   possession   of   the   same   weapon   unless   the   State   proves,   beyond   a 

    4   Simmons, 899 P.2d at 933-34. 

    5   Id. at 936. 

                                                  -  18 -                                               2300 

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reasonable doubt, that the defendant's possession of this weapon was not continuous - 

in   other   words,    that  the  defendant     actually   engaged     in  two   discrete   possessions. 

Simmons, 899 P.2d at 936. 

                In Simmons, there was some evidence suggesting that the defendant had 

engaged in two separate possessions - that he sold the weapon to another man, and then 

later took possession of it again.        Id. at 936-37.     Nevertheless, we held that Simmons 

could lawfully be convicted of only one count - because "the jury was never required 

to consider or decide [this] issue": 

                Because the [jury] instructions did not apprise the jury [that, 
                to justify two separate convictions, the State needed to prove] 
                that Simmons' possession of the [pistol] had been interrupted 
                at   some    point   between     the  first  alleged   offense   and   the 
                 second, the jury's verdicts left the issue unresolved.           At this 
                juncture,   any   ambiguity   must   be   resolved   in   favor   of   the 
                accused.      [Citation omitted] Accordingly, we conclude that 
                 Simmons' two convictions must merge. 

Simmons, 899 P.2d at 937. 

                See   also  Stewart   v.   Commonwealth,   306   S.W.3d   502,   506   (Ky.   2010) 

(holding that continued possession of contraband is a single course of conduct that gives 

rise to a only single offense); Fulcher v. Commonwealth, 149 S.W.3d 363, 376 (Ky. 

2004) (approving other jurisdictions' conclusion that "uninterrupted possession of the 

same contraband over a period of time is but one offense constituting a continuing course 

of   conduct,   precluding   convictions   of   multiple   offenses   for   possession   of   the   same 

contraband on different dates"); State v. Kamaka, 277 S.W.3d 807, 811-12 (Mo. App. 

2009)   (holding   that   the   defendant's   possession   of   the   same   computer   file   of   child 

pornography on two different dates constituted a single offense). 

                                                  -  19 -                                            2300
 

----------------------- Page 20-----------------------

                And   see  State   v.   Farr,   7   A.3d   1276,   1281-82   (N.H.   2010)   (discussing 

appellate decisions from around the country on the issue of when separate convictions 

for possession are legally justified). 

                As we noted earlier, three of Wiglesworth's convictions were based on his 

possession of iodine (a "listed" chemical) at different locations on different dates.  But 

if  these   three   counts  were    based   on  the   same   supply   of   iodine   that   Wiglesworth 

purchased   or   procured   in   furtherance   of   a   single   methamphetamine   manufacturing 

operation, then - under the legal principles we have just summarized - Wiglesworth 

could only be convicted of one act of possession. 

                As was true in the Simmons case, there is some evidence in Wiglesworth's 

case tending to show that he may have engaged in discrete possessions of iodine.  As we 

explained   toward   the   beginning   of   this   opinion,   Wiglesworth   was   found   guilty   of 

possessing iodine on May 22, 2007 at the beach on the Little Susitna River.  He was also 

found guilty of possessing iodine (as well as acetone) in a vehicle five days later, on May 

27th.  And Wiglesworth was found guilty of a third count of possessing iodine (as well 

as red phosphorus) at the cabin near Willow on June 4th. 

                The   police   seized   the   iodine   and   acetone   they   found   in   Wiglesworth's 

vehicle on May 27th.  Thus, it is possible that Wiglesworth was forced to purchase more 

iodine sometime between May 27th and June 4th, when the police found iodine in the 

cabin. If that was the case, then one could argue that Wiglesworth's possession of iodine 

on June 4th constituted a separate act from his possession of iodine on May 27th.  On the 

other hand, it is also possible that both the iodine found in the vehicle and the iodine 

found later in the cabin came from the same, larger supply - that each cache of iodine 

was only a different manifestation of the same act of possession. 

                                                - 20 -                                            2300
 

----------------------- Page 21-----------------------

               This   issue  went   unlitigated  and   unresolved    at  Wiglesworth's    trial. 

Therefore, under our decision in Simmons, the ambiguity must be resolved against the 

government and in Wiglesworth's favor. 

               In the same vein, Wiglesworth's activity at the beach on the Little Susitna 

River and his later activity at the cabin near Willow may have been separate, discrete 

attempts to manufacture methamphetamine. On the other hand, these activities may have 

constituted one continuing (albeit interrupted) attempt to manufacture methamphetamine 

- with an early stage (the effort to synthesize hydriodic acid from red phosphorus and 

iodine) taking place at the beach, and a later stage (the effort to create the completed 

methamphetamine) taking place at the cabin.         Again, this issue went unlitigated and 

unresolved at Wiglesworth's trial - and, thus, the ambiguity must be resolved against 

the government and in Wiglesworth's favor. 

               There are, perhaps, other theories under which Wiglesworth might be guilty 

of separately punishable acts of "possession" for purposes of AS 11.71.020.  But as we 

have explained, the facts justifying separate convictions would have to be expressly 

pleaded by the State and found by the jury.      When the facts (as found by the jury) are 

ambiguous as to whether a defendant has committed one offense or two, the defendant 
should receive only a single conviction and sentence. 6       Accordingly, any arguments 

concerning how the facts of Wiglesworth's case might justify separate convictions for 

second-degree controlled substance misconduct are moot. 

    6  See  Cronce v. State, 216 P.3d 568, 570 (Alaska App. 2009); Atkinson v. State , 869 

P.2d 486, 495 (Alaska App. 1994); Horton v. State, 758 P.2d 628, 632 (Alaska App. 1988) 
(noting that the State has the burden of proving each offense beyond a reasonable doubt); see 
also Mill v. State, 585 P.2d 546, 552 n. 4 (Alaska 1978) ("In marginal cases[,] doubts should 
be resolved against turning a single transaction into multiple offenses"). 

                                            - 21 -                                        2300 

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       Conclusion 

              We conclude that the evidence presented at Wiglesworth's trial supports 

his conviction for burglary, and we further conclude that Wiglesworth could properly be 

convicted separately of both this act of burglary and the controlled substance misconduct 

that was the ulterior motive for the burglary.  However, we conclude that the six jury 

verdicts finding Wiglesworth guilty of second-degree controlled substance misconduct 

must be merged into a single conviction and sentence. 

              We therefore remand this case to the superior court so that the judgement 

against Wiglesworth can be amended to reflect one conviction for controlled substance 

misconduct, and so that the superior court can re-sentence Wiglesworth.     See Allain v. 

State, 810 P.2d 1019, 1021-22 (Alaska App. 1991). 

                                          - 22 -                                     2300
 
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