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Jordan v. State (1/15/2016) ap-2483

Jordan v. State (1/15/2016) ap-2483

                                                                           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@ akcourts.us  



                            IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                



ANTONIO  N.  JORDAN,  

                                                                                                                                          

                                                                                                 Court of Appeals No. A-11048  

                                                                                                                                                      

                                                   Appellant,                                   Trial Court No. 4TO-09-151 CR  



                                      v.  



STATE  OF  ALASKA,  



                                                   Appellee.  



                    

JAMES F. LETENDRE,  

                                                                                                                                          

                                                                                                 Court of Appeals No. A-11271  

                                                                                                                                                       

                                                   Appellant,                                  Trial Court No. 3PA-11-1989 CR  



                                      v.  

                                                                                                              O  P  I  N  I  O  N  

                                                                                                                                          

STATE  OF  ALASKA,  



                                                   Appellee.                                      No. 2483 - January 15, 2016  

                                                                                                                                                



                          Appeals from the Superior Court, Fourth Judicial District, Tok,  

                                                                                                                                     

                                          

                          Robert B. Downes, Judge, and Third Judicial  District, Palmer,  

                                                                                                                               

                          Kari Kristiansen, Judge.  

                                                          



                          Appearances:                Margi  Mock,  under  contract  with  the  Public  

                                                                                                                                 

                          Defender  Agency (for  Appellant  Antonio  N.  Jordan),  Megan  

                                                                                                                                

                          Webb,  Assistant  Public   Defender  (for  Appellant  James  F.  

                                                                                                                                        

                          Letendre),  and Quinlan Steiner,  Public  Defender,  Anchorage  

                                                                                                                         

                          (for   both  appellants).                      Ann  B.  Black,  Assistant   Attorney  

                                                                                                                           

                          General,           Office          of      Special          Prosecutions                 and       Appeals,  

                                                                                                                           


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

                                                             Anchorage, and Michael                                                                                         C.   Geraghty and Craig W. Richards,                                                                                      

                                                             Attorneys General, Juneau, for the Appellee.                                                                                                                                                      



                                                             Before:   Mannheimer, Chief Judge, Allard, Judge, and Hanley,                                                                                                                                                                                    

                                                                                                                                                         *  

                                                             District Court Judge.                                                                            



                                                                                        

                                                              Judge MANNHEIMER.  



                                                              The    defendants    in    these    two    appeals    were    convicted    of    violating  



AS 11.71.040(a)(3)(F) -                                                                                                   i.e., possessing marijuana "[in] an aggregate weight of four                                                                                                                                                                                                  



ounces or more" - after the police found marijuana on their residential properties.                                                                                                                                                                                                                                                                                                           



                                                             Both defendants now assert that their juries should have been instructed that                                                                                                                                                                                                                                                  



even if the marijuana in their possession actually weighed four ounces or more, it would                                                                                                                                                                                                                                                                                 



be a defense to this charge if the defendant made                                                                                                                                                                                         a reasonable mistake regarding the                                                                                                                



weight of the marijuana.                                                                                          



                                                              (In   Jordan's   case,   the   jury   received   no   instruction   on   this   point.     In  



Letendre's case, the jury was affirmatively instructed that it was irrelevant whether the                                                                                                                                                                                                                                                                                                    



defendant knew, or even reasonably should have known, that the marijuana weighed four                                                                                                                                                                                                                                                                                                    



ounces or more.)                                                                



                                                             As we explain more fully in this opinion, we agree that the juries should                                                                                                                                                                                                                                       



have been instructed that                                                                                              reasonable mistake as to the weight of the marijuana was a                                                                                                                                                                                                                    



defense.   Possession of less than four ounces of marijuana in one's home for personal use                                                                                                                                                                                                                                                                                                  



is protected under the right of privacy guaranteed by Article I, Section 22 of the Alaska                                                                                                                                                                                                                                                                                    



Constitution.   Ravin v. State                                                                                                    , 537 P.2d 494 (Alaska 1975);                                                                                                              Noy v. State                                                 , 83 P.3d 538,                              



 542-43   (Alaska   App.   2003).     We   accordingly   conclude   that   when   a   defendant   is  



prosecuted for possessing four ounces or more of marijuana in their home, the State must                                                                                                                                                                                                                                                                                              



                *  

                               Sitting   by   assignment   made   pursuant   to   Article   IV,   Section    16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                                                                                                       



                                                                                                                                                                                            -  2 -                                                                                                                                                                                      2483
  


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

prove   that   the   defendant   was   at   least   negligent   regarding the                                                                                                                                                                                                                      circumstance   that   the  



amount of marijuana equaled or exceeded four ounces.                                                                                                                                                                   



                                                             But as we also explain in this opinion,                                                                                                                                                we conclude that this                                                                                   error was   



harmless beyond a reasonable doubt in both of the defendants' cases.                                                                                                                                                                                                                                                                    We therefore   



affirm both defendants' convictions for possessing four ounces or more of marijuana.                                                                                                                                                                                                                                                                                                                    



                                                             Jordan's case presents an additional issue.                                                                                                                                                          The jury found him guilty of                                                                                                   



two offenses:                                                    possessing four ounces or more of marijuana,                                                                                                                                                                                   and also maintaining a                                                                              



building (his greenhouse and cabin) to keep the marijuana.                                                                                                                                                                                                                              Jordan should not have                                                                     



received a separate conviction for this latter offense.                                                                                                                                                                                      See Rofkar v. State                                                                      , 305 P.3d 356,                                 



 358-59 (Alaska App. 2013).                                                                                                          We therefore direct the superior court to enter a single,                                                                                                                                                                       



merged conviction based on the jury's two verdicts.                                                                                                                                                                                           



                                Underlying facts   



                                                             State v. Jordan                                                       : The Alaska State Troopers searched Antonio N. Jordan's                                                                                                                                                                         



property and discovered 15 marijuana plants growing in his greenhouse.                                                                                                                                                                                                                                                                                 They also   



 found an                                    extensive marijuana growing space on the upper floor of his cabin.                                                                                                                                                                                                                                                                     The  



troopers dried the marijuana plants, then separated the buds and leaves.                                                                                                                                                                                                                                                            The dried buds                                  



and leaves weighed a little over a pound and a half (approximately 25.2 ounces).                                                                                                                                                                                                                                                                                                 



                                                             Jordan was indicted on two counts of fourth-degree controlled substance                                                                                                                                                                                                                         



misconduct.   The first count charged Jordan with possessing four ounces or more of                                                                                                                                                                                                                                                                                                             

                                                   1         The second count charged Jordan with knowingly maintaining a building  

marijuana.                                                                                                                                                                                                                                                                                                                                                      



that was used for keeping or distributing controlled substances in furtherance of a felony  

                                                                                                                                                                                                                                                                                                                                                                        



                1  

                               AS 11.71.040(a)(3)(F).                                                                                 



                                                                                                                                                                                            -  3 -                                                                                                                                                                                     2483
  


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

                                                2  

 drug offense.                                       This "maintaining a building" count                                                                                           was based on the fact that Jordan                                                             



 grew and stored the marijuana in buildings on his property.                                                                                                                                                



                                               A jury found Jordan guilty of both these offenses.                                                                                                                           



                                               State v. Letendre                                           :    The police found several marijuana plants growing in                                                                                                                              



 James F. Letendre'sresidence. They                                                                                         also found processed marijuana (i.e., marijuana that                                                                                                             



 had been harvested and dried).                                                                              



                                               The marijuana plants weighed almost thirteen                                                                                                                      pounds when they were                                                  



 seized.   According to the testimony at Letendre's trial, these plants would have yielded                                                                                                                                                                                       



 a little over two pounds of usable marijuana after the plants were harvested and dried.                                                                                                                                                                                           



                                               The additional, already-processed marijuana found at Letendre's residence                                                                                                                                                  



 weighed 1.88 pounds.                                                          



                                               Letendre was charged with three offenses:                                                                                                         possessing one ounce or more                                                           

                                                                                                                                         3  possessing four ounces or more of marijuana;  

 of marijuana with intent to distribute it;                                                                                                                                                                                                                          



 and  maintaining  a  building  for   keeping  or   distributing  controlled  substances  in  

                                                                                                                                                                                                                                                                                                



 furtherance of a felony drug offense.   (This "maintaining a building" count was based  

                                                                                                                                                                                                                                                                                      



 on the fact that Letendre grew and stored the marijuana in his home.)  

                                                                                                                                                                                                                                                



                                               Letendre claimed that all of this marijuana was for his personal use.  The  

                                                                                                                                                                                                                                                                                          



jury acquitted Letendre of possessing the marijuana for distribution, and also acquitted  

                                                                                                                                                                                                                                                                         



 him  of  the  "maintaining  a  building"  charge,  but  the  jury  convicted  Letendre  of  

                                                                                                                                                                                                                                                                                               



 possessing four ounces or more of marijuana.  

                                                                                                                                                                



            2  

                        AS 11.71.040(a)(5).                                                 



            3  

                                                                                            

                        AS 11.71.040(a)(2).  



                                                                                                                                                          

                                                                                                                                             - 4 -                                                                                                                                        2483
  


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

                                              The issue presented in these appeals                                                                                                                                                            



                                                                                          The main question presented in these appeals is whether, when the State                                                                                                                                                                                                                                                                                                                                                                                              



 charges someone with possessing four ounces or more of marijuana in their home for                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



personal use, the State is required to prove that the defendant acted with a culpable                                                                                                                                                                                                                                                                                                                                                                                                                                 



mental state regarding the circumstance that the marijuana in their possession amounted                                                                                                                                                                                                                                                                                                                                                                                                                                       



to four ounces or more.                                                                                                                                           



                                                                                          Jordan and Letendre argue that, in such cases, the State is required to prove                                                                                                                                                                                                                                                                                                                                                                                    



that the defendant was at least reckless, as defined in AS 11.81.900(a)(3), regarding the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 circumstance that the marijuana weighed four ounces or more.                                                                                                                                                                                                                                                                                                                                                                       



                                                                                          For its part, the State argues that no culpable mental state need be proved                                                                                                                                                                                                                                                                                                                                                                             



with respect to the weight of the marijuana.                                                                                                                                                                                                                                                              The State takes the position that when a                                                                                                                                                                                                                                      



 defendant is charged with possessing four ounces or more of marijuana, the State must                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



prove that the defendant "knowingly" possessed the marijuana,                                                                                                                                                                                                                                                                                                                                                                                        but the defendant is                                                                                                           



 strictly liable with regard to whether the marijuana equals or exceeds four ounces.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                          As we will explain, we agree with the State in part.                                                                                                                                                                                                                                                                                                     When a defendant is                                                                                                                



 charged with possessing four ounces or more of marijuana in a place                                                                                                                                                                                                                                                                                                                                                                                                                 other   than   the  



 defendant's home, the defendant is strictly liable with regard to the amount of marijuana                                                                                                                                                                                                                                                                                                                                                                                                                                    



 in their possession.                                                                                                         The situation is different, however, for defendants who are charged                                                                                                                                                                                                                                                                                                                                           



with possessing marijuana in their homes.                                                                                                                                                                                                                                              



                                                                                          The privacy clause of the Alaska Constitution - Article I, Section 22 -                                                                                                                                                                                                                                                                                                                                                                                                               



 limits the government's authority to prosecute people for possession of marijuana in their                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



homes when the marijuana is for personal use.                                                                                                                                                                                                                                                                               Ravin v. State                                                                                           , 537 P.2d 494 (Alaska                                                                                 



  1975).   In  Noy v. State                                                                                                                          , 83 P.3d 538, 542-43 (Alaska App. 2003), this Court held that this                                                                                                                                                                                                                                                                                                                                                 



 constitutional right of privacy covers personal possession of marijuana in amounts less                                                                                                                                                                                                                                                                                                                                                                                                                                                                                



than four ounces.                                                                                                       



                                                                                                                                                                                                                                                                                   -  5 -                                                                                                                                                                                                                                                                            2483
  


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

                                                                                          Because of this, we hold that when a defendant is prosecuted for possessing                                                                                                                                                                                                                                                                                                                                                        



 four ounces or more of marijuana for personal use in their home, the State must prove                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



that the defendant was at least negligent regarding the circumstance that the amount of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



marijuana equaled or exceeded four ounces.                                                                                                                                                                                                                                                               



                                                                                          We will now explain in detail how we reached this conclusion.                                                                                                                                                                                                                                                                                                                                                                    



                                              The culpable mental state that the government must prove when a person                                                                                                                                                                                                                                                                                                                                                                         

                                              is charged under AS 11.71.040(a)(3)(F) with possessing four ounces or                                                                                                                                                                                                                                                                                                                                                                                                                   

                                             more of marijuana in their home                                                                                                                                                          



                                                                                          Both   Jordan   and   Letendre   were   charged   with   fourth-degree   controlled  



 substance misconduct under AS 11.71.040(a)(3)(F).                                                                                                                                                                                                                                                                                                             This statute declares that a person                                                                                                                                           



commits   a   class   C   felony   if   the   person   "possesses   ...   one   or   more   preparations,  



compounds,   mixtures,   or substances of an aggregate weight of four ounces or more                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



containing [marijuana]."                                                                                                                                            



                                                                                          The primary issue raised in this appeal is whether, when a defendant is                                                                                                                                                                                                                                                                                                                                                                                                                      



charged with violating this statute, and when the possession occurs in the defendant's                                                                                                                                                                                                                                                                                                                                                                                                                            



home, the government must prove that the defendant acted with a culpable mental state                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



regarding the fact that the marijuana in their possession equaled or exceeded four ounces.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                          The language of AS 11.71.040(a)(3)(F) itself does not contain any reference                                                                                                                                                                                                                                                                                                                                                                 



to culpable mental states.                                                                                                                                                 However, another statute, AS 11.81.610(b), contains some                                                                                                                                                                                                                                                                                                                          



general rules of statutory construction pertaining to culpable mental states.                                                                                                                                                                                                                                                                                                                                                                                                                                      One clause   



of this statute, AS 11.81.610(b)(1), declares that the government must normally prove                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



that a defendant acted "knowingly" with respect to the conduct specified in a criminal                                                                                                                                                                                                                                                                                                                                                                                                                                              



 statute.    And another clause of the statute, AS 11.81.610(b)(2), declares that when a                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



criminal statute applies to conduct only in particular circumstances, the government must                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



normally prove that the defendant acted "recklessly" with respect to those circumstances.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                    -  6 -                                                                                                                                                                                                                                                                             2483
  


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

                                                                                           If we applied these rules of construction to AS 11.71.040(a)(3)(F),                                                                                                                                                                                                                                                                                                                                                                                                                   we  



would conclude that the government was required to prove that Jordan and Letendre                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 "knowingly" possessed their marijuana, and that they acted "recklessly" with respect to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



the circumstance that the marijuana weighed four ounces or more.                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                           In both Jordan's and Letendre's cases, the juries were indeed instructed that                                                                                                                                                                                                                                                                                                                                                                                                        



the State had to prove that Jordan and Letendre "knowingly possessed" the marijuana.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



But in Jordan's case, the jury was not told that the State had to prove that Jordan acted                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 "recklessly", or acted with any other culpable mental state, regarding the fact that the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



usable parts of his marijuana plants had "[an] aggregate weight                                                                                                                                                                                                                                                                                                                                                                                                [of] four ounces or                                                                                                     



more".     And   in   Letendre's   case,   the   jury   was   affirmatively   instructed   that   it   was  



irrelevant whether Letendre might have reasonably believed that his marijuana weighed                                                                                                                                                                                                                                                                                                                                                                                                                                                            



 less than four ounces.                                                                                                                               



                                                                                           The   State   argues   that   both   juries   were   correctly   instructed.     More  



 specifically,   the State argues that when a defendant                                                                                                                                                                                                                                                                                                                     is charged with possessing four                                                                                                                                                              



 ounces or more of marijuana under AS 11.71.040(a)(3)(F), the State must prove only one                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 culpable mental state - that the defendant "knowingly" possessed the marijuana - and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



the State is not required to prove that the defendant acted with any culpable mental state                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



regardingthe                                                                           weight of the marijuana. In                                                                                                                                                          other words, the State contends that defendants  



 face strict liability with regard to the fact that the marijuana in their possession weighed                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 four ounces or more.                                                                                                                            



                                                                                           The State acknowledges that "recklessly" is the culpable mental state that                                                                                                                                                                                                                                                                                                                                                                                                          



normally must be proved with respect to circumstances, but the State argues that this                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 default rule of statutory construction does not apply here.                                                                                                                                                                                                                                                                                                                                            More specifically, the State                                                                                                                                



relies on AS 11.81.600(b)(2) - a statute which declares that the default culpable mental                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 states specified in AS 11.81.610(b) do not apply, and that no culpable mental state must                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                      -  7 -                                                                                                                                                                                                                                                                               2483
  


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

be proved, "if a legislative intent to dispense with the culpable mental state requirement                                                                                                                                                                                                                                        



is present."                                       



                                                          The   State   argues   that   Jordan's   and   Letendre's   cases   are   governed   by  



AS 11.81.600(b)(2) because the legislative history of Alaska's Controlled Substances                                                                                                                                                                                                                                                 



Act (AS 11.71) demonstrates that the legislature intended to dispense with proof of any                                                                                                                                                                                                                                                                               



culpable mental state regarding the amount of a controlled substance in a defendant's                                                                                                                                                                                                                                        



possession.    



                                                          We acknowledge that the legislative commentary to AS 11.71 states in                                                                                                                                                                                                                                               



 several places that,                                                                 with regard to statutes that                                                                                                 define   a drug offense in terms of a                                                                                                                        



defendant's possession of a particular amount of a controlled substance, the legislature                                                                                                                                                                                                                                                  



did not intend to require the State to prove that the defendant acted with any culpable                                                                                                                                                                                                                                                          



mental state with regard to the specified amount.                                                                                                                                                                 Rather, if the government proves that                                                                                                               



the defendant knowingly possessed the drug, the legislature wanted the defendant to be                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                     4  

held strictly liable with regard to the amount of the drug.                                                                                                                                                                                               



                                                          We  therefore  agree  with  the  State  that,  under  the  rules  of  statutory  

                                                                                                                                                                                                                                                                                                                                           



construction codified in AS 11.81.600(b) and 610(b), we should construe AS 11.71.- 

                                                                                                                                                                                                                                                                                                                                                      



040(a)(3)(F) as not requiring the State to prove that Jordan or Letendre acted with any  

                                                                                                                                                                                                                                                                                                                                                                      



culpable mental state regarding the amount of marijuana in their possession.  But we also  

                                                                                                                                                                                                                                                                                                                                                                      



conclude  that,  if  we  construed  the  statute  in  this  manner,  the  statute  would  be  

                                                                                                                                                                                                                                                                                                                                                                        



unconstitutional when applied to cases where a defendant is charged with possession of  

                                                                                                                                                                                                                                                                                                                                                                            



marijuana in their home.  

                                                                                                            



               4  

                              See   the   Commentary and Sectional                                                                                                                   Analysis   for   the   1982   Revision   of   Alaska's 

Controlled Substances Laws (Conference Committee Substitute for                                                                                                                                                                                                                            Senate   Bill No. 190)                                                 

(May   20, 1982) at pages 7, 14, and 21.                                                                                                                                     See also the preceding year's Commentary and                                                                                                                                               

 Sectional Analysis for the 1981 Revision of Alaska's Controlled Substances Laws, 1981                                                                                                                                                                                                                                                                         

House Journal Supplement No. 60 (June 19, 1981) at pages 10-11.                                                                                                                                                                                                                    



                                                                                                                                                                                  -  8 -                                                                                                                                                                           2483
  


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

                                           Our conclusion on this issue is primarily based on the Alaska Supreme                                                                                                                                         



Court's decision in                                           State v. Rice                               , 626 P.2d 104 (Alaska 1981), a decision that we will                                                                                                            



explain in some detail in this opinion.                                                     



                                            (a)   The   normal   rule   of   strict    liability   that   applies   when   an  

                                 underlying illegal act constitutes different degrees of crime, depending                                                                                                                       

                                 on the circumstances     



                                           This Court has repeatedly held that when an offense is divided into degrees,                                                                                                                                      



with one statutory provision defining the basic crime                                                                                                                         and   another statutory provision                                         



declaring   that   the   offense   is   a   higher   degree   of   crime   under   certain   aggravating  



circumstances, it is lawful to convict a defendant of the higher degree of crime without                                                                                                                                                                      



proof that the defendant possessed any culpable mental state regarding the aggravating                                                                                                                                                            



                                                                                                                                                                                                                                                                  5  

circumstance that distinguished the higher degree of crime from the basic crime.                                                                                                                                                                                      



                                           This same principle is embodied in the Alaska Legislature's approach to the  

                                                                                                                                                                                                                                                                             



offenses defined in AS 11.71 - specifically, the legislature's announced intention  to  

                                                                                                                                                                                                                                                                               



relieve the State of proving any culpable mental state with regard to the amount of the  

                                                                                                                                                                                                                                                                             



controlled substance in the defendant's possession.  

                                                                                                                                                                      



                                           The legislature's approach rests on the underlyingand unstated premise that  

                                                                                                                                                                                                                                                                           



it is illegal for a person to possess  any  amount of a controlled substance (unless the  

                                                                                                                                                                                                                                                                            



person is authorized to do so under the provisions of AS 17.30).   If it is a  crime  to  

                                                                                                                                                                                                                                                                              



possess any amount of a particular drug, and if another provision of AS 11.71 makes it  

                                                                                                                                                                                                                                                                                  



a higher degree of crime to possess that drug in quantities greater  than  a  specified  

                                                                                                                                                                                                                                                        



amount, the legislature can properly decide  that the government should be exempted  

                                                                                                                                                                                                                                                       



           5  

                      See Hoople v.State                                         ,985 P.2d 1004, 1005-06 (Alaska App. 1999);                                                                                               Noblit v. State                              , 808   

P.2d 280, 282-86 (Alaska App. 1991);                                                                                  Ortberg v. State                                   , 751 P.2d 1368, 1374 (Alaska App.                                                              

 1988); and                       Bell v. State                         , 668 P.2d 829, 832-33 (Alaska App. 1983).                                                                                               



                                                                                                                                    -  9 -                                                                                                                              2483
  


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

from proving that the defendant acted with a culpable mental state regarding the amount                                                                



of the drug.            



                          Alaska's   statutory   regulation   of   marijuana   ostensibly   conforms   to   this  



                                                                                                                                                  6  

model.   Under Alaska law, marijuana is a Schedule VIA controlled substance.                                                                                 

                                                                                                                                                      (In fact,  



                                                                                                                                                                  

marijuana is the only Schedule VIA controlled substance.)  Possession of any amount of  



                                                                                                                                                             

marijuana  is  a  class  B  misdemeanor,  unless  the  amount  equals  or  exceeds  one  

              7  If the amount of marijuana is at least one ounce but less than four ounces, the  

ounce.                                                                                                                                                          



                                                                 8  

crime is a class A misdemeanor.                                      And if the amount of marijuana is four ounces or  

                                                                                                                                                                 

more, the crime is a class C felony. 9  

                                                       



                          If this statutory framework were constitutional, the legislature would have  

                                                                                                                                                             



the authority to eliminate the government's burden of proving a culpable mental state  

                                                                                                                                                            



with regard to the amount of marijuana in a defendant's possession.  But this statutory  

                                                                                                                                                     



framework is not constitutional when the government charges a person with possession  

                                                                                                                                                  



of marijuana in their home.  

                                                       



                          (b)  Alaska's constitutional protection of an adult's possession of  

                                                                                                                                                     

                   marijuana in their home for personal use  

                                                                                             



                          In Ravin v.  State,  537 P.2d 494,  504,  511 (Alaska  1975),  the Alaska  

                                                                                                                                                         



Supreme  Court  held  that  the  privacy  clause  of  our  state  constitution  protects  an  

                                                                                                                                                                



adult's right to possess marijuana in their home if the marijuana is for personal use.  

                                                                                                                                                                       



Some fifteen years after the Ravin  decision,  the voters  of Alaska approved a ballot  

                                                                                                                                                           



      6  

             See  AS 11.71.190(b).                    



      7  

                                                                 

             See AS 11.71.060(a)(2)(A).  



       8  

                                                                 

             See AS 11.71.050(a)(2)(E).  



      9  

                                                                 

             See AS 11.71.040(a)(3)(F).  



                                                                                       

                                                                             -  10 -                                                                        2483
  


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

measure that purported to re-criminalize                                                                                                                                    all possession of marijuana.                                                                                              But in                            Noy v.   



State  (I), 83 P.3d 538, 542-43 (Alaska App. 2003), this Court held that the new statute                                                                                                                                                                                                                                                 



was unconstitutional to the extent that it infringed on the constitutional right of privacy                                                                                                                                                                                                                                           



 as   interpreted   in   Ravin.     More   specifically,   we   held   that   the   legislature   could   not  



 criminalize an adult's possession of less than four ounces of marijuana in their home if                                                                                                                                                                                                                                                                      



the possession was for personal use.                                                                                                                   Noy I   , 83 P.3d at 543.                                                                          



                                                        Immediately following our decision in                                                                                                                         Noy I   , the State sought rehearing.                                                                                                             



See Noy v. State                                                   (II), 83 P.3d 545 (Alaska App. 2003).                                                                                                                           In its petition for rehearing, the                                                                                   



 State argued that we had misinterpreted                                                                                                                             Ravin.    



                                                        According to the State, the                                                                                    Ravin  decision did not restrict the legislature's                                                                                            



 authority to prohibit all possession of marijuana; rather,                                                                                                                                                                                 Ravin  meant only that when                                                                       



 defendants   are   arrested   and   charged   with   possessing marijuana,                                                                                                                                                                                                         they   can   assert   an  



 affirmative defense that the marijuana was (1) possessed in their home (2) for personal                                                                                                                                                                                                                                           



use.   Noy II                                     , 83 P.3d at 546.                                                       



                                                        In   Noy   II,   we   analyzed   the   State's   position   at   some   length,   and   we  



 compared it to the ways in which the Alaska Supreme Court had described and applied                                                                                                                                                                                                                                                    



Ravin  in its subsequent decisions.                                                                                                        Id.  at 546-47.                                               At the conclusion of our analysis, we                                                                                                          



rejected the State's argument that the legislature still had the authority to enact laws that                                                                                                                                                                                                                                                         



 completely prohibit the possession of marijuana.                                                                                                                                                          



                                                         

                                                                                   Based on [our] analysis of the                                                                                               Ravin  decision and the                                                           

                                                        later   supreme   court   decisions   construing   Ravin,   we    are  

                                                        convinced that the State's interpretation of                                                                                                                                      Ravin  is wrong.                                                       

                                                       Ravin   did not create an affirmative defense that defendants                                                                                                                                             

                                                        might   raise,   on   a   case-by-case   basis,   when   they   were  

                                                       prosecuted   for   possessing   marijuana   in   their   home   for  

                                                       personal use.                                           Instead, both in the                                                                Ravin  opinion itself and in                                                                        

                                                        the supreme court's later descriptions of                                                                                                                                Ravin ,   the Alaska   

                                                        Supreme Court has repeatedly and consistently characterized                                                                                                                                     



                                                                                                                                                                       -   11 -                                                                                                                                                                    2483
  


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

                                                                 the  Ravin   decision as announcing a constitutional limitation                                                                                                                                                                                     

                                                                  on the government's authority to enact legislation prohibiting                                                                                                                                                                                

                                                                 the possession of marijuana in the privacy of one's home.                                                                                                                                                                                               



Noy II                          , 83 P.3d at 547-48.                                                                                



                                                                 We therefore denied the State's petition for rehearing - thus re-affirming                                                                                                                                                                                                                               



 our   holding in                                                        Noy   I   that   the   Alaska   Legislature   had   no   constitutional authority                                                                                                                                                                                                                                                             to  



prohibit the possession of less than four ounces of marijuana by adults in their home for                                                                                                                                                                                                                                                                                                                           



personal use.                                                     Noy II                              , 83 P.3d at 548-49.                                                                               



                                                                  See also our later decision in                                                                                                         State v. Crocker                                                              , 97 P.3d 93, 96 (Alaska App.                                                                                       



 2004),   where   we   held   that   no   search   warrant   can   issue   for   evidence   of   marijuana  



possession unless the State affirmatively establishes probable cause to believe that the                                                                                                                                                                                                                                                                                                                          



type of marijuana possession at issue is something other than the                                                                                                                                                                                                                                                                  type   of possession   



protected by Alaska's right to privacy as construed in                                                                                                                                                                                                             Ravin  and  Noy.   



                                                                 Because Jordan and Letendre were convicted of possessing marijuana on                                                                                                                                                                                                                                                                                



residential property for personal use, their cases involve the right of privacy recognized                                                                                                                                                                                                                                                                                     



 in  Ravin  and  Noy .    



                                                                 Letendre's   case   is   directly   governed   by   Ravin   and   Noy,   because   the  



marijuana was found in his dwelling.                                                                                                                                               In Jordan's case, the marijuana was found on his                                                                                                                                                                                  



residential property, but in a detached                                                                                                                                                          greenhouse - a situation that is arguably not                                                                                                                                                                    



 covered by                                            Ravin  and  Noy .    Because (as we explain later) we conclude that any                                                                                                                                                                                                                                                                      Ravin  



/   Noy   error was harmless beyond a reasonable doubt in Jordan's case,                                                                                                                                                                                                                                                                                           we need not                                    



resolve this question.                                                                               We will therefore assume, for purposes of this case, that                                                                                                                                                                                                                    Ravin  and  



Noy   apply   to   Jordan's   possession   of   marijuana   in   a   detached   greenhouse   on   his  



residential property.                                                                               



                                                                 Under  Ravin   and  Noy, Jordan and Letendre were not guilty of any crime                                                                                                                                                                                                                                                             



under Alaska's controlled substances act unless the State proved that the marijuana in                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                    -   12 -                                                                                                                                                                                                 2483
  


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

their   possession   equaled   or   exceeded   four   ounces.     In   other   words,   Jordan's   and  



Letendre's   cases   fall within                                                                 the   category   of   cases   where   a   defendant's   underlying  



conduct is lawful unless the government affirmatively proves a particular circumstance                                                                                                                                                       



that makes it criminal.                                                   



                                           (This is the crucial distinction between Jordan's and Letendre's cases and                                                                                                                                                      



the decisions of this Court listed                                                                         in   footnote 5 of this opinion - decisions where we                                                                                                             



recognized and applied the rule that when a defendant's basic underlying conduct is itself                                                                                                                                                                              



criminal, the legislature can exempt the State from proving a culpable mental state with                                                                                                                                                                                 



regard to special circumstances that make the defendant guilty of an aggravated version                                                                                                                                                                         



of the offense.)                                     



                                           In   situations   where   conduct   is   lawful   unless   the   government   proves  



particular circumstances that make the conduct criminal,                                                                                                                                     the government has only                                                              a  



circumscribed authority to impose strict criminal liability.                                                                                                                                The applicable principles of                                                        



law are found in                                     State v. Rice                              , 626 P.2d 104 (Alaska 1981).                                                                       



                                                                                                                                                                                                                                                     

                                            (c)  The  Alaska Supreme Court's decision in State v.  Rice:   the  

                                                                                                                                                                                                                           

                                 constitutional limits on strict liability offenses in Alaska  



                                                                                                                                                                                                                                                                               

                                           State v.  Rice  involved a defendant who  was  convicted of violating an  



                                                                                                                                                                                                                                                                         

administrative regulation, former 5 AAC 81.140(b), which declared, "No person may  

                                                                                                                                                                                                                       10       According to the  

                                                                                                                                                                                                                                                                            

possess  or  transport any game or parts of game illegally taken."  



 State's evidence, Rice (who was a big game guide) helped his clients commit the offense  

                                                                                                                                                                                                                                                               



of  killing a  moose "same day airborne" (i.e., on the same day that they traveled by  

                                                                                                                                                                                                                                                                              



           10  

                     Rice , 626 P.2d at 107.                                               



                                                                                                                                  -   13 -                                                                                                                              2483
  


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

airplane), and then Rice used his airplane                                 to transport the meat of the illegally taken                    



             11  

moose.     



                       Rice  was  ultimately   acquitted  of  the  "same  day  airborne"  charge.  

                                                                                                                                       



(Apparently, the State failed to prove that Rice was complicit in his clients' illegal kill.)  

                                                                                                                                            

But Rice was convicted of the illegal transportation charge. 12  

                                                                                        



                       The issue before the supreme court was whether the State was required to  

                                                                                                                                                 



prove that Rice acted with a culpable mental state regarding the fact that the moose was  

                                                                                                                                              



illegally taken.  Rice contended that the State was required to prove that he either knew,  

                                                                                                                                          



or reasonably should have known, that the moose was illegally taken.  The State, on the  

                                                                                                                                               



other hand, argued that no culpable mental state was required, and that Rice was strictly  

                                                                                                                                         

liable for transporting the moose meat. 13  

                                                         



                       The supreme court acknowledged that the regulation at issue - "No person  

                                                                                                                                         



may possess or transport any game or parts of game illegally taken" - did not expressly  

                                                                                                                                     

require proof of any culpable mental state. 14                                   The question,  then,  was whether the  

                                                                                                                                               



regulation should be interpreted as implicitly requiring proof of a culpable mental state.  

                                                                                                                                           



                       To answer that question, the supreme court had to weigh two competing  

                                                                                                                                   



doctrines:  (1) the general rule that criminal liability should be imposed only when the  

                                                                                                                                               



defendant acts with "consciousness of wrongdoing" (a phrase that the supreme court later  

                                                                                                                                             

clarified as requiring proof of at least negligence 15), versus (2) the recognized exception  

                                                                                                                                    



that punishment can be imposed without proof of a culpable mental state for regulatory  

                                                                                                                                   



      11  

           Id.  at 106.       



      12  

           Ibid.  

                     



      13  

           Id. at 107.  

                              



      14  

           Ibid.  

                     



      15  

                                                                                                                   

           See State v. Hazelwood, 946 P.2d 875, 878-79 (Alaska 1997).  



                                                                              

                                                                     -  14 -                                                                2483
  


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

offenses involving "particular industries,                                 trades,   ...   or activities that affect the public                

health, safety, or welfare."                    16  



                        The  supreme  court  acknowledged  that  fish  and  game  offenses  were  

                                                                                                                                                 



normally viewed as the sort of regulatory offenses that would permit punishment on a  

                                                                                                                                                        



strict liability basis - and "[t]hus, the mere fact that the case at bar involves a fish and  

                                                                                                                                                    



game regulation might perhaps be considered by some [courts] to be sufficient ... [to  

                                                                                                                                                     

warrant] strict liability[.]" 17  

                           



                        But the supreme court declared that it did not view fish and game offenses  

                                                                                                                                            



as being inherently strict liability offenses because, despite the regulatory nature of these  

                                                                                                                                                 



offenses, the court also had to consider the danger that imposing strict liability would  

                                                                                                                                               

violate a defendant's constitutional rights. 18  

                                                               



                        The majority in Rice  concluded that the illegal transportation  regulation  

                                                                                                                                       



would not give adequate notice of what conduct was prohibited unless the regulation was  

                                                                                                                                                   



construed to require proof of at least negligence - i.e., proof that defendants either knew  

                                                                                                                                                 



or at least reasonably should have known that the game they were transporting had been  

                                                                                                                                                  

taken illegally. 19  The majority also concluded (in the alternative) that, without proof that  

                                                                                                                                                   



the  defendant  was  at  least  negligent,  the  illegal  transportation  regulation  bore  no  

                                                                                                                                                    

reasonable relationship to any valid government purpose. 20  

                                                                                                          



                        Justice  Matthews,  in  a  concurring  opinion,  wrote  that  both  of  these  

                                                                                                                                                



rationales were unconvincing.  He believed that the government had an obvious interest  

                                                                                                                                             



      16  

            Rice , 626 P.2d at 107.                



      17  

            Id. at 108.  

                               



      18  

            Id. at 108-09.  

                                     



      19  

            Id. at 109-110.  

                                        



      20  

                               

            Id. at 110.  



                                                                                 

                                                                        -  15 -                                                                  2483
  


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

in outlawing the transportation of illegally taken game, even when the transporter acted                                                                



                                                           21  

without a culpable mental state.                                                                                                                    

                                                                He further believed that the regulation clearly defined  



                                                                                                                                                        

what conduct was prohibited; the fact that the regulation apparently did not require proof  



                                                                                               22  

                                                                                                   

of a culpable mental state did not make it "vague".  



                         The real problem, Justice Matthews concluded, was that violation of the  

                                                                                                                                                            



regulation carried a penalty of up to six months' imprisonment:  given a penalty of this  

                                                                                                                                                           



magnitude, it was fundamentally unfair to convict people who acted innocently.  "In my  

                                                                                                                                                            



view," Justice Matthews wrote,  "due process requires that [the government prove] a  

                                                                                                                                                               



culpable  mental  state  in  every  case  where  a  sentence  of  imprisonment  may  be  

                                                                                                                                                            



                    23  

imposed."             



                         Justice Matthews's criticism  of the majority's rationale has considerable  

                                                                                                                                           



force.         Moreover,  his alternative approach to this issue finds  support  in a series of  

                                                                                                                                                              



                                                                                                                                                              24  

supreme court decisions - for example, State v. Guest, 583 P.2d 836 (Alaska 1978),  

                                                                                                                                                  



                                                                                          25  

Kimoktoak v. State, 584 P.2d 25 (Alaska 1978),                                                and Hentzner v. State, 613 P.2d 821  

                                                                                                                                                            



      21  

            Id.  at 115.        



      22  

                       

            Ibid.  



      23  

            Ibid.  



      24  

                                                                                                                                                     

             The  defendant  in  Guest  was  charged with "statutory" rape  under  Alaska's  former  

                                                                                                                                                         

criminal code - i.e., having consensual sex with an underage partner.   The supreme court  

                                                                                                                                                           

held that the statute defining this crime would be unconstitutional unless the defendant was  

                                                                                                                                                         

allowed  to  present  the  defense  that  he  acted  under  a  reasonable  mistake  -  i.e.,  non- 

                                                                                                                                        

recklessly - regarding his sexual partner's age.  Guest, 583 P.2d at 838-39.  



      25  

                                                                                                                                                             

             In Kimoktoak ,  the  supreme  court  held that  Alaska's  hit-and-run statute  would be 

                                                                                                                                                              

unconstitutional unless the State was required to prove that, when the defendant failed to  

                                                                                                                                                             

stop,  the  defendant  was  personally  aware  of  circumstances  that  would  lead  him  to  

                                                                                                                                                 

"reasonably anticipate" that an  accident resulting in injury to a person had just occurred.  

                                                                

Kimoktoak , 584 P.2d at 29, 32-33.  



                                                                                     

                                                                           -  16 -                                                                       2483
  


----------------------- Page 17-----------------------

                                 26                                                                                                                                             27  

(Alaska 1980).                        See also State v. Fremgen                                , 889 P.2d 1083 (Alaska App. 1995).                                



                                                                                                                                                                        

                             However,  Justice Matthews's suggested  rule of decision - a universal  



                                                                                                                                                                                      

requirement of a culpable  mental state whenever an offense carries the possibility of  



       26  

               In   Hentzner ,   the   supreme   court   held that                                       a defendant               could not             be   convicted   of 

wilfully failing to register a proposed investment contract with the Division of Banking and                                                                                        

Securities unless the State proved that the defendant was aware that he might be engaged in                                                                                            

wrongdoing -                   i.e., that the defendant was at least reckless regarding the possibility that the                                                                     

law required the offering to be registered.                                              It was not enough, the court ruled, for the State                                       

to   prove   merely   that   the   defendant   "[was]   aware   of   what   he   [was]   doing"   or   that   the  

defendant "intentionally [did] the acts which are prohibited by law".                                                                       Hentzner , 613 P.2d at                      

825.   



       27  

               The defendant in Fremgen  was also accused of "statutory" rape, but under Alaska's  

                                                                                                                                                                          

current   criminal   code.                              At   the   time   of   Fremgen's                                 offense,  the   pertinent   statute,  

                                                                                                                                                                           

AS 11.41.445(b), allowed defendants to raise the affirmative defense that they acted under  

                                                                                                                                                                                

a reasonable mistake as to their sexual partner's age - but only if the victim was at least 13  

                                                                                                                                                                                      

years  of  age.                  Relying  on  the  supreme  court's  decisions  and  reasoning  in  Guest  and  

                                                                                                                                                                                    

Kimoktoak ,  this  Court  held that  it  was  unconstitutional  for  the  legislature  to  place  this  

                                                                                                                                                                                   

restriction on the defense of reasonable mistake of age - because, if this restriction was  

                                                                                                                                                                                   

enforced, some defendants might be convicted of sexual abuse of a minor even though they  

                                                                                                                                                                                   

honestly  and  reasonably  believed  that  they  were  engaging  in  lawful  sexual  relations.  

                                                                                                                                                                                             

Fremgen , 889 P.2d at 1084-85.  

                                                                   



       The State petitioned the supreme court to review our decision, and the supreme  court  

                                                                                                                                                                               

initially granted the State's petition and ordered briefing.  But the court ultimately affirmed  

                                                                                                                                                                          

this Court's decision:  see State v. Fremgen, 914 P.2d 1244 (Alaska 1996).  

                                                                                                                                                             



        (The supreme court's final order declares that the  court decided to dismiss the State's  

                                                                                                                                                                             

petition as improvidently granted.  Id., 914 P .2d at 1245.  Thus, technically, one might say  

                                                                                                                                                                                     

that the supreme court did not "affirm" this Court's decision, but merely allowed it to stand.  

                                                                                                                                                                                             

However, after declaring that the State's petition was dismissed, the supreme court's order  

                                                                                                                                                                                

goes on to explain (at some length) why this Court reached the correct decision under Guest  

                                                                                                                                                                               

and Kimoktoak , and why the State had failed to provide any convincing reason to overrule  

                                                                                                                                                                          

those precedents.  Id. at 1245-46.)  

                                                                        



                                                                                       -  17 -                                                                                   2483
  

                                                                                                  


----------------------- Page 18-----------------------

imprisonment - was not adopted by the supreme court as a whole.                                                                                                                                                                                                                                                       Thus, we interpret                               



the supreme court's decision in                                                                                                                 Rice  as standing for two more limited principles:                                                                                                                                                                               



                                                              First, the fact that an offense deals with a subject matter that is normally                                                                                                                                                                                                                           



considered "regulatory" does not automatically exempt the government from having to                                                                                                                                                                                                                                                                                                                



prove a culpable mental state.                                                                                                             Second, the question of whether a particular statute or                                                                                                                                                                                                



regulation requires proof of a culpable mental state must be determined on a case-by-case                                                                                                                                                                                                                                                     



basis, by considering (1) the severity of the penalty and (2) the fairness or unfairness of                                                                                                                                                                                                                                                                                                        



imposing that penalty on people who violate the law unwittingly.                                                                                                                                                                                                                                         



                                                              This view of                                               Rice  is confirmed by the supreme court's later discussion of                                                                                                                                                                                                              



this   topic   in   State   v.   Hazelwood,   946   P.2d   875   (Alaska   1997).     Here,   the   court  



 summarized the various factors that must be considered                                                                                                                                                                                                                     when conducting this case-                                                                              



 specific analysis:   



                                                                

                                                                                             [I]t is firmly                                               established in our jurisprudence that a                                                                                                                                         

                                                              mental state of simple or ordinary negligence can support a                                                                                                                                                                                                                 

                                                              criminal conviction.                                                                       ...   [H]owever, ... [sometimes] more will                                                                                                                              

                                                             be required, and sometimes less.                                                                                                                        [In]  Speidel  [v. State                                                                         ], 460   

                                                              P.2d [77,]                                        80   [(Alaska 1969)], [we] found a denial of due                                                                                                                                                               

                                                             process where the defendant had been convicted of "simple                                                                                                                                                                                       

                                                              neglectful or negligent failure to return a rented automobile."                                                                                                                                                                                                                      

                                                              In   that   case,   we   insisted   on   at   least   a   finding of                                                                                                                                                                       reckless  

                                                              culpability in order for criminal sanctions to be imposed.                                                                                                                                                                                                         



                                                                                             On the other hand,                                                                          elsewhere we have                                                                             allowed the   

                                                              mens rea                                    element to be                                                        dispensed with entirely.                                                                                            We have   

                                                              allowed    strict    liability    to    be    read    into    "public    welfare  

                                                              offenses."   See,   e.g.,  Rice, 626 P.2d at 107.                                                                                                                                                                 These public   

                                                              welfare offenses are proscriptions which "heighten the duties                                                                                                                                                                                           

                                                              of those in control of particular industries, trades, properties                                                                                                                                                                    

                                                              or   activities   that   affect   public   health,   safety   or   welfare."   

                                                             Morissette v. United States                                                                                                 , 342 U.S. 246, 254, 72 S.Ct. 240,                                                                                                 

                                                              245, 96 L.Ed. 288 (1952).                                                                                              See also Haxforth v. Idaho                                                                                                , ... 786       



                                                                                                                                                                                          -   18 -                                                                                                                                                                                       2483
  


----------------------- Page 19-----------------------

                                                                    P.2d 580,                                            582 ([Idaho] App.                                                                                  1990) (four-part test).                                                                                                 As a   

                                                                    corollary, a      mens rea                                                                                    requirement is imputed only                                                                                                                          when   a  

                                                                    serious   penalty   attaches.     See   Guest,   583   P.2d   at   838;  

                                                                    Kimoktoak, 584 P.2d at 29; and                                                                                                                                  Speidel, 460 P.2d at 80;                                                                                                   see  

                                                                    also People v. Olson                                                                                   , ... 448 N.W.2d 845, 847 ([Mich. App.]                                                                                                                                   

                                                                     1989).    Also,   no mental element will be                                                                                                                                                                        required when a                                                                   

                                                                    statute   provides   "clear   legislative   intent   to   the   contrary."  

                                                                    Rice, 626 P.2d at 108;                                                                                              see also Lambert v. California                                                                                                                                  , 355   

                                                                    U.S.  225, 228, 78 S.Ct. 240, 242-43, 2 L.Ed.2d 228 (1957)                                                                                                                                                                                                                 

                                                                    ("There   is   wide   latitude   in   the   lawmakers   to   declare   an  

                                                                    offense and to exclude elements of knowledge and diligence                                                                                                                                                                                                        

                                                                    from its definition.");                                                                                  cf. Gregory v. State                                                                               , 717 P.2d 428, 430                                                           

                                                                    (Alaska App. 1986).                                                                                     



Hazelwood, 946 P.2d at 879-880.                                                                                                                                               



                                                                     See also                                 Cole v. State                                                        , 828 P.2d 175, 178-79 (Alaska App. 1992), where                                                                                                                                                                                  



this Court conducted its own review of the various factors involved in this culpable                                                                                                                                                                                                                                                                                                                     



mental state analysis.                                                                                       



                                                                    In the years since                                                                     Rice  and  Hazelwood, this Court has twice confronted the                                                                                                                                                                                                                 



 question of allowing strict liability versus requiring proof of a culpable mental state in                                                                                                                                                                                                                                                                                                                                               



 cases involving the regulation of drugs and alcohol.                                                                                                                                                                                                               



                                                                    In  Myers v. Anchorage                                                                                                  , 132 P.3d                                               1176 (Alaska App. 2006), this Court                                                                                                                              



 addressed the constitutionality of the Municipality of Anchorage's drug paraphernalia                                                                                                                                                                                                                                                                                 



 ordinance.    This ordinance,                                                                                                                     as written,                                               allowed a defendant to be convicted - and                                                                                                                                                                          



 sentenced to jail - for selling or possessing a wide range of supplies and implements                                                                                                                                                                                                                                                                                                   



that might reasonably be used for preparing or ingesting illegal drugs, without proof that                                                                                                                                                                                                                                                                                                                                      



the defendant was aware that the items would actually be used for unlawful purposes.                                                                                                                                                                                                                                                                                                                                                                   



We held that this provision violated the Alaska Constitution's guarantee of due process.                                                                                                                                                                                                                                                                                                                  



  132 P.3d at 1185.                                                                          



                                                                                                                                                                                                            -   19 -                                                                                                                                                                                                          2483
  


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

                                              More recently, in                                           Solomon v. State                                             , 227 P.3d 461, 467-68 (Alaska App.                                                                            



2010), we held that there should be a defense of unwitting intoxication in prosecutions                                                                                                                                                                     



for driving under                                               the influence.                                      Specifically, we held that it is a defense if a person                                                                                                  



unwittingly becomes intoxicated because of a reasonable, non-negligent mistake about                                                                                                                                                                                                



the intoxicating nature of the beverage or substance they ingested.                                                                                                                                                                



                                              It is unclear how much weight we should give                                                                                                                      the   Myers   and  Solomon  



decisions when deciding the present appeal.                                                                                                            The flexibility (some might say nebulous-                                                                     



ness) of the                            Rice  /  Hazelwood  analysis is both its strength and its weakness.                                                                                                                                                     On the one                 



hand, this multi-factor analysis allows                                                                                              an appellate court to consider each statute and                                                                                                      



regulation in light of its own particular statutory history, its specific underlying purposes,                                                                                                                                                                        



and the potential social consequences of allowing the government to punish people for                                                                                                                                                                                                        



that particular offense without proof of a culpable mental state.                                                                                                                                                           On the other hand, a                                                   



multi-factor analysis means that almost every prior court decision dealing with related                                                                                                                                                                                         



statutes is potentially distinguishable.                                



                                                                                                                                                                                                                                              

                                   (d) Application of the Rice / Hazelwood test to the present cases  



                                                                                                                                                                                                                                                                                            

                                              The present cases involve the intersection of two competing policies:  the  



                                                                                                                                                                                                                                                                    

legislature's  acknowledged  authority  to  enact  wide-ranging  regulation  of  controlled  



                                                                                                                                                                                                                                                                          

substances, versus the constitutional guarantee of privacy as interpreted by our supreme  



                                                                                                                                           

court in Ravin and by this Court in Noy .  



                                                                                                                                                                                                                                                                

                                              The statute at issue here, AS 11.71.040(a)(3)(F), is part of our legislature's  



                                                                                                                                                                                                                                                                                

regulation of controlled substances.   This is an area of law where courts often uphold  



                                                                                                                                                                                                                                                                                      

strict liability; this suggests that it might be permissible for the legislature to impose strict  



                                                                                                                                                                                                                                                                                               

liability on defendants who mistakenly think that they have less than  four  ounces of  



                                                                                                                                                                                                                                                                                             

marijuana in their home, even when their mistake is an honest and reasonable one.  



                                                                                                                                          -  20 -                                                                                                                                       2483
  


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

                                                                      But as we noted earlier, AS 11.71.040(a)(3)(F) differs from the normaldrug                                                                                                                                                                                                                                                                                            



law because of the supreme court's ruling in                                                                                                                                                                                    Ravin.   Typically, it is unlawful for a person                                                                                                                                          



to possess                                            any  amount of any controlled substance without proper authorization.                                                                                                                                                                                                                                                                                                  But in   



Alaska, our constitutional right of privacy protects an adult's right to possess less than                                                                                                                                                                                                                                                                                                                                                



 four ounces of marijuana in their home for personal use.                                                                                                                                                                                                                                       If the government were allowed                                                                                             



to impose felony penalties - here, imprisonment for up to 5 years - on people who                                                                                                                                                                                                                                                                                                                                                         



honestly and reasonably, but mistakenly, believe that they possess a permissible amount                                                                                                                                                                                                                                                                                                                                   



 of marijuana in their home, this would significantly undercut the constitutionalprotection                                                                                                                                                                                                                                                                                                                   



 announced in                                                         Ravin.    



                                                                      When we weigh these competing considerations usingthe                                                                                                                                                                                                                                             Rice  /  Hazelwood  



 analysis,   we   conclude   that   when   a   defendant   is   charged   with   violating AS                                                                                                                                                                                                                                                                                                                            11.71.- 



 040(a)(3)(F) for possessing four ounces or more of marijuana in their home,                                                                                                                                                                                                                                                                                                                                            the due   



process clause of the Alaska Constitution requires the State to prove that the defendant                                                                                                                                                                                                                                                                                                                      



 acted at least negligently regarding the circumstance that the marijuana weighed four                                                                                                                                                                                                                                                                                                                                                     



 ounces or more.                                                                     In other words, the due process clause forbids the State from convicting                                                                                                                                                                                                                                                 



the   defendant   if   the   defendant   reasonably   (i.e.,   non-negligently)   believed   that   they  



possessed less than four ounces.                                                                                                                                           



                                                                      This   constitutional   requirement   overrides   the   legislature's   intention   to  



 subject these defendants to strict liability.                                                                                                                                                                           



                                                     (e)   Application of this rule to Jordan's and Letendre's cases                                                                                                                                                                                                                                     



                                                                      As we noted earlier in this opinion, Jordan's jury was not instructed that the                                                                                                                                                                                                                                                                                              



 State had to prove that Jordan acted with negligence (or any other culpable mental state)                                                                                                                                                                                                                                                                                                                                            



regarding the weight                                                                                           of   the marijuana in his greenhouse.                                                                                                                                                                   And Letendre's jury was                                                                                              



 affirmatively instructed that even if Letendre was reasonably mistaken about the amount                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                  -  21 -                                                                                                                                                                                                                  2483
  


----------------------- Page 22-----------------------

of marijuana he possessed, this was irrelevant.                                                      The remaining question is whether these                                                    



errors require reversal of the two defendants' convictions.                                                                       



                             Because   the   errors   in   these   cases   exempted   the   State   from   having to   



establish an element of the offense, we must reverse Jordan's and Letendre's convictions                                                                              



                                                                                                                                                                                     28  

unless we are convinced that the errors were harmless beyond a reasonable doubt.                                                                                                           



                             A properly instructed jury would have been asked to decide whether the  

                                                                                                                                                                                       



State had proved, beyond a reasonable doubt, that Jordan and Letendre acted at least  

                                                                                                                                                                                    



negligently  with  respect  to  the  circumstance  that  the  amount  of  marijuana  in  their  

                                                                                                                                                                                   



possession equaled or exceeded four ounces.  That is,  the State had to convince the jury  

                                                                                                                                                                                     



that  Jordan  and  Letendre  either  knew  or  reasonably  should  have  known  that  their  

                                                                                                                                                                                   



marijuana weighed at least four ounces.  

                                                                                         



                             Jordan's case :  According to the evidence presented at Jordan's trial, the  

                                                                                                                                                                                       



marijuana seized from Jordan's property yielded more than 25 ounces of leaves and buds  

                                                                                                                                                                                    



after it was dried.  Jordan wanted to take the stand and testify (according to his attorney's  

                                                                                                                                                                         



offer of proof) that "to the best of [Jordan's]  knowledge,  [he] ...  would not [have  

                                                                                                                                                                                 



expected] the amount of marijuana that he had been growing to come out to more than  

                                                                                                                                                                                     



four ounces ... after it was processed[.]"  The defense attorney told the trial judge that,  

                                                                                                                                                                                    



based on Jordan's knowledge of the amount of marijuana he was growing, and Jordan's  

                                                                                                                                                                            



research into the  statutory method for weighing marijuana,  Jordan had a reasonable  

                                                                                                                                                                      



expectation that his amount of marijuana was under the legal limit.  

                                                                                                                                                    



                             In other words, Jordan wished to testify that he honestly and reasonably  

                                                                                                                                                                      



believed that the marijuana in his possession was under the four-ounce limit.  

                                                                                                                                                                         



       28  

              Adams v. State                  , 261 P.3d 758, 773 (Alaska 2011).                                         



                                                                                        -  22 -                                                                                     2483
  


----------------------- Page 23-----------------------

                                                                           After   hearing   the   defense   attorney's   offer   of   proof,   the   trial   judge  



  announced that he would not let Jordan give this testimony.                                                                                                                                                                                                                                                                                      The judge characterized                                          



 Jordan's proposed testimony as "almost ludicrous" and "incredible".                                                                                                                                                                                                                                                                                                                        



                                                                           Although   the   trial judge                                                                                                              may   have   had   reasons   for   being skeptical of                                                                                                                                                                                                      



 Jordan's   proposed   testimony,   a   judge's   skepticism   regarding   the   truthfulness   or  



  credibility of a witness's proposed testimony                                                                                                                                                                                                                       is   not a valid reason for the judge to                                                                                                                                                                    



  exclude that testimony from the trial.                                                                                                                                                                  Regardless of how the judge views these matters,                                                                                                                                                                                       



  it is the jury's role to assess and resolve questions of truthfulness and credibility.                                                                                                                                                                                                                                                                                                                                                                      



                                                                           But even though the trial judge committed error by excluding                                                                                                                                                                                                                                                                                                     Jordan's  



 proposed testimony, the question of harmless error turns on whether there is a reasonable                                                                                                                                                                                                                                                                                                                                    



 possibility that a properly instructed jury, having heard Jordan's proposed testimony,                                                                                                                                                                                                                                                                                                                                            



 would have found in Jordan's favor on the issue of whether Jordan's assessment of the                                                                                                                                                                                                                                                                                                                                                                                       



 weight of the marijuana was reasonable.                                                                                                                                                                                         



                                                                            Given the great discrepancy between the statutory limit (four ounces) and                                                                                                                                                                                                                                                                                                                     



 the amount                                                          of usable marijuana harvested from Jordan's plants (slightly more than a                                                                                                                                                                                                                                                                                                                                          



 pound and a half), we conclude that no reasonable                                                                                                                                                                                                                                              jury could have had a reasonable                                                                                          



  doubt on this question.                                                                                                        The evidence was overwhelming that, even if Jordan may have                                                                                                                                                                                                                                                                       



  subjectively believed that the amount of marijuana in his possession was less than four                                                                                                                                                                                                                                                                                                                                                                              



  ounces, Jordan's assessment was unreasonable.                                                                                                                                                                                                                           



                                                                           We therefore conclude that the two errors in Jordan's case - the judge's                                                                                                                                                                                                                                                                                                   



  failure to                                           tell the jury that the State was required to prove that Jordan was at least                                                                                                                                                                                                                                                                                                                                  



 negligent regarding the fact that his marijuana equaled or exceeded four ounces, and the                                                                                                                                                                                                                                                                                                                                                                                    



judge's refusal to let Jordan testify on this subject - were harmless beyond a reasonable                                                                                                                                                                                                                                                                                                                                    



  doubt.     Accordingly,   we   affirm   Jordan's   conviction   for   fourth-degree   controlled  



  substance misconduct.                                                                                                        



                                                                                                                                                                                                                                -  23 -                                                                                                                                                                                                                               2483
  


----------------------- Page 24-----------------------

                                       Letendre's case                               : The marijuana plants found in Letendre's home weighed                                                                                       



almost   thirteen pounds when they were seized - the equivalent of a little over                                                                                                                                                              two  



pounds of usable marijuana once the marijuana was harvested and dried.                                                                                                                                                 In addition,   



Letendre had other processed marijuana that weighed 1.88 pounds.                                                                                                                                     



                                       As we noted above, the question of harmless error turns on whether there                                                                                                                             



is a reasonable possibility that a properly instructed jury would have had a reasonable                                                                                                                                  



doubt as to whether Letendre reasonably believed that all of this marijuana weighed less                                                                                                                                                        

                                                      29         Given the great discrepancy between the statutory limit of four  

than four ounces.                                                                                                                                                                                                                             



ounces and the amount of marijuana found in Letendre's possession, we conclude that  

                                                                                                                                                                                                                                                



no reasonable jury could have had a reasonable doubt on this question.  The evidence  

                                                                                                                                                                                                                                 



was  overwhelming that,  even  if  Letendre  subjectively  believed  that  the  amount  of  

                                                                                                                                                                                                                                                   



marijuana  in  his  possession  was  less  than  four  ounces,  Letendre's  assessment  was  

                                                                                                                                                                                                                                              



unreasonable.  

                                          



                                       Thus, even though the trial judge erroneously instructed the jury that it was  

                                                                                                                                                                                                                                             



irrelevant whether Letendre might have reasonably believed that he possessed less than  

                                                                                                                                                                                                                                              



four ounces of marijuana, we conclude that this error was harmless beyond a reasonable  

                                                                                                                                                                                                                          



doubt.                    Accordingly,  we  affirm  Letendre's  conviction  for  fourth-degree  controlled  

                                                                                                                                                                                                                            



substance misconduct.  

                                                                   



          29  

                   Anderson v. State                                  , 337 P.3d 534, 540 (Alaska App. 2014).                                                                         



                                                                                                                     -  24 -                                                                                                                 2483
  


----------------------- Page 25-----------------------

                                    Jordan should not have received a separate conviction for maintaining a                                                                                                                                                                                                                                                                                                                             

                                     building used for keeping or distributing controlled substances in violation                                                                                                                                                                                                                                                                             

                                     of a felony drug offense                                                                                                          



                                                                        As we explained at the beginning of this opinion, Jordan was convicted of                                                                                                                                                                                                                                                                                                                      



 a second crime - the offense of maintaining a building used for keeping or distributing                                                                                                                                                                                                                                                                                                                               



 controlled substances in violation of a felony drug offense.                                                                                                                                                                                                                                                                    AS 11.71.040(a)(5).                                                                                                  This  



 second conviction was based on the theory that Jordan grew and stored the marijuana in                                                                                                                                                                                                                                                                                                                                                                                 



buildings on his property.                                                                                                                



                                                                         Because this was the State's theory of prosecution, it was improper for the                                                                                                                                                                                                                                                                                                              



 superior   court   to   enter   a   separate   conviction   and   sentence   for   the   "maintaining   a  



building" charge.                                                                            Under our decision in                                                                                                     Rofkar v. State                                                                      , 305 P.3d 356, 358-59 (Alaska                                                                                               



App. 2013), the superior court was required to enter a single, combined conviction for                                                                                                                                                                                                                                                                                                                                                                            



the two counts.                                                                      



                                                                        Accordingly, we direct the superior court to issue an amended judgement                                                                                                                                                                                                                                                                           



reflecting one merged conviction and one sentence.                                                                                                                                                                                                                                    



                                     Conclusion  



                                                                         Jordan's and Letendre's convictions for fourth-degree controlled substance                                                                                                                                                                                                                                                                            



misconduct under AS 11.71.040(a)(3)(F) -                                                                                                                                                                                                   i.e., the convictions based on the theory that                                                                                                                                                                     



they possessed four or more ounces of marijuana - are AFFIRMED.                                                                                                                                                                                                                                                                                                                              



                                                                         However,   in   Jordan's   case,   we   direct   the   superior   court   to   merge   his  



 conviction for this offense with his separate conviction for fourth-degree controlled                                                                                                                                                                                                                                                                                                                                 



 substance misconduct under AS 11.71.040(a)(5) -                                                                                                                                                                                                                                            i.e., the conviction based                                                                                                                       on the   



 "maintaining a building" theory.                                                                                                                                            



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