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Bochkovsky v. State (8/28/2015) ap-2471

Bochkovsky v. State (8/28/2015) ap-2471


               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@  

                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                               



                                                                                                                Court of Appeals No. A-11100  


                                                           Appellant,                                        Trial Court No. 3PA-10-1771 CR  


                                                                                                                               O  P  I  N  I  O  N  



                                                           Appellee.                                             No. 2471 - August 28, 2015  


                              Appeal from the Superior Court, Third Judicial District, Palmer,  


                              Eric Smith, Judge.  


                              Appearances:                    Hanley Smith,  Assistant  Public  Defender,  and  


                              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                              Timothy  W.  Terrell,  Assistant  Attorney  General,  Office  of  


                              Special  Prosecutions  &  Appeals,  Anchorage,  and Michael  C.  


                              Geraghty, Attorney General, Juneau, for the Appellee.  


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


                              Matthews, Senior Supreme Court Justice.*  



                              Senior Justice MATTHEWS, writing for the Court.  


                              Judge MANNHEIMER, dissenting.  

                              Vladimir A. Bochkovsky was convicted after a jury trial of misconduct                                                                   

involving a controlled substance in the second degree in violation of AS 11.71.020(a)(1)                                                                     

        *      Sitting   by   assignment   made    pursuant   to   Article   IV,   Section   11   of   the   Alaska  

Constitution and Administrative Rule 23(a).                                    

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

 (possession of oxycodone with intent to deliver).                                                                                                                                                                                                                         At sentencing,                                                                     the superior court                                                 

rejected a proposed mitigating factor that the offense involved a small quantity of drugs                                                                                                                                                                                                                                                                                                                                         

 and   sentenced   Bochkovsky   to   6   years   of   imprisonment.     On   appeal,   Bochkovsky  

contends   that:     (1)   a   state   trooper   lacked   reasonable   suspicion   to   subject   a   drug- 

containing package to a canine sniff; (2) there was insufficient evidence that Bochkovsky                                                                                                                                                                                                                                                                                                     

intended to deliver the oxycodone; and (3) the superior court erred in rejecting the "small                                                                                                                                                                                                                                                                                                                                   

quantities" mitigator.                                                                                       We conclude that none of these contentions has merit and affirm.                                                                                                                                                                                                                                                                                    

                                   Summary of facts and proceedings                                                                                   

                                                                      In   July   2010,   a   FedEx manager                                                                                                                                        in   Wasilla   contacted   the   Alaska   State  

Troopers about a package he believed was suspicious.                                                                                                                                                                                                                                           The troopers also thought the                                                                                                                 

package was suspicious and had a trained dog sniff it in the FedEx offices.                                                                                                                                                                                                                                                                                                                           When the   

dogalerted,                                                 a trooper obtained a search                                                                                                                warrant, opened the package, and discovered that  

it contained 129 OxyContin pills disguised as                                                                                                                                                                                                 rolls   of candy inside a cellophane bag.                                                                                                                                                                          

 Subsequently, the troopers prepared a substitute package for delivery. They put only one                                                                                                                                                                                                                                                                                                                                                   

of the OxyContin pills in the new package along with some candy and the rest of the                                                                                                                                                                                                                                                                                                                                                          

contents of the original package.                                                                                                                                    They also equipped the new package with an electronic                                                                                                                                                                                  

device that would emit a signal when the package was opened.                                                                                                                                                                                                                                                                          

                                                                      The troopers obtained another warrant to search the residence where the                                                                                                                                                                                                                                                                                                 

package was to be delivered.                                                                                                                           When the package was delivered, Bochkovsky answered                                                                                                                                                                                                   

the door and accepted delivery.                                                                                                                                 Shortly after delivery, the electronic device sounded and                                                                                                                                                                                                                   

the troopers knocked on the door of the residence.                                                                                                                                                                                                                When no one answered, they forced                                                                                                                         

their way in and found Bochkovsky in a bedroom with the opened package and its                                                                                                                                                                                                                                                                                                                                                                  

contents on the floor.                                                           

                                                                                                                                                                                                                    -  2 -                                                                                                                                                                                                              2471

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

                           Prior   to   his   trial,   Bochkovsky   moved   to   suppress   the   contents   of   the  

package on the ground that the troopers lacked reasonable suspicion to subject it to a dog                                                                             

sniff.   After an evidentiary hearing, the superior court denied the motion.                                                                        

                           A jury then convicted Bochkovsky of second-degree misconduct involving                                                            

                                               1   on  the  theory  that  he  possessed  the  oxycodone  (the  active  

a   controlled   substance                                                                                                                                        

ingredient in OxyContin) with intent to deliver and fourth-degree misconduct involving  


a controlled substance2  on the theory that he possessed any amount of oxycodone.  The  


superior court merged the two counts at sentencing.  


                           Bochkovsky asked the sentencing court to impose a mitigated sentence  


because  there  was  only  one  OxyContin  pill  in  the  package  at  the  time  he  was  


apprehended.3                   He also proposed the "least serious conduct" mitigator4  and the "minor  


harm" mitigator.5                     The sentencing court rejected the proposed mitigating factors and  


sentenced Bochkovsky to 6 years to serve, a sentence within the presumptive range of  


5 to 8 years for a first felony offender.6  


                           Bochkovsky appeals.  


             Facts concerning Bochkovsky's package and the canine sniff  


                           The package, a cardboard box supplied by FedEx, was taped shut, but not  


all the seams were sealed.                                A FedEx airbill was  taped to the top indicating that the  


       1     AS   11.71.020(a)(1).  

       2     AS   11.71.040(a)(3)(A).  

       3     See  AS   12.55.155(d)(13).  



             AS 12.55.155(d)(9).  

       5     AS   12.55.155(d)(12).  

       6     See  AS   12.55.125(c)(1).  



                                                                                  - 3 -                                                                              2471

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

recipient was Mikey Sheeby of 341 East Heather Way,                                                                                                                                                                                                                  Apartment 1,                                                     Wasilla.    The  

 sender's   name   was   Mark   Vu   of   3111   132nd   St.   SE,   Apartment   A104,   Everett,  

Washington, and a phone number was listed.                                                                                                                                                              The airbill was filled out by hand.                                                                                                                      It called   

for next-day delivery.                                                                            The sender paid $67.98 in cash to ship the package.                                                                                                                                                                                      The package   

was sent from a Kinko's/FedEx facility in Everett, Washington, on July 1, 2010.                                                                                                                                                                                                                                                                 

                                                             Trooper Mike Ingram was dispatched to FedEx in Wasilla after a manager                                                                                                                                                                                                                         

identified the package as suspicious.                                                                                                                               Ingram had been assigned to the Mat-Su narcotics                                                                                                                                          

unit for some six                                                                  and a half years and had received substantial training in narcotics                                                                                                                                                                                                       

investigations, including "drug interdictions                                                                                                                                                         via commercial modes of transportation."                                                                                                                                                           

Based on this training and experience, Ingram looked for "key indicators" on packages                                                                                                                                                                                                                                                                        

that have a "high probability of having drugs."                                                                                                                                                                    

                                                             Ingram noted several indicators that led him to suspect that this package                                                                                                                                                                                                                           

contained drugs.                                                              The package had                                                                           a   handwritten label,                                                                          which indicated that it was                                                                                

probably not a commercial shipment, which constituted most of FedEx's business.                                                                                                                                                                                                                                                                                                  The  

 shipment   was   paid   in   cash   and   had   been   sent   by   next   day   air,   which   is   relatively  

expensive - $67.98 in this case.                                                                                                                       Ingram found this factor "pretty significant" because                                                                                                                                                       

"[w]e know that individuals [who] are shipping drugs through commercial modes ...                                                                                                                                                                                                                                                                                                           

often pay cash because the items inside are more valuable                                                                                                                                                                                                                               than the money they're                                                       

 [spending] to have a speedy delivery of that package."                                                                                                                                                                                               The shipment was also made at                                                                                                           

a    "[Kinko's]    FedEx    copy,   which    is    basically    a    drop-box    I    believe    at    Everett,  

                                                              7   Ingram explained that this mode of delivery, like a cash payment, "helps  


to further distance [the sender] from being tied back  to  the  package if it were to be  


intercepted via law enforcement."  


               7               Trooper Ingram's use of the term "drop-box" may be mistaken because it conflicts                                                                                                                                                                                                                                               

with other testimony indicating that the package was sent from a Kinko's/FedEx office.                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                          -  4 -                                                                                                                                                                                   2471

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

                                  The final indicator was Ingram's belief that the recipient, "Mikey Sheeby,"                                                                                       

 was   fictitious.     Before   the   dog   sniff,   Ingram   checked   the   Alaska   Public   Safety  

 Information Network (APSIN) and found no one named Mike,                                                                                                               Michael,   or Mikey   



                           According to Ingram, APSIN contains the names of people with an Alaska  


 identification card or driver's license, and people who have had contact with the criminal  


justice system.  Ingram also checked the "Mat-Com ... computer automated dispatch,"  


 a database compiled by the combined dispatch center for all police in the Matanuska- 


 Susitna Valley.  Ingram explained that Mat-Com indicates a "history [of police contact]  


 at a house and who ha[s] been previously contacted at a [particular] residence."  This  


 database did have some history of individuals at the address given on the package, but  

                                                                                                           9     Ingram decided  that  these factors, taken  


 none concerning a person named Sheeby. 

         8       At trial, Trooper Ingram testified concerning the coverage of APSIN:                                                                                                  

                  If you have a driver's license, or if you've ever been contacted by the police,                                                                                         

                  or   if   you   had   a   criminal   case,   anything   along   those   lines,   you   would   be  

                  generated in an APSIN and there would be some sort of record of you existing                                                                                          

                  in this state.                 Now, Alaska is pretty closed off.                                                Most of the time when I find                                 

                 people they're in APSIN.                                        I'm not saying that everyone is in APSIN because                                                       

                  it's not all encompassing for the entire world, but mostly if you're in Alaska                                                                                          

                 most of the time you're going to be ... in the system.                                                     



                 Bochkovsky states in his brief that Ingram verified that the phone number listed for  


 the sender was a real number in Everett, Washington, and confirmed that Mark Vu was a real  


person in Bellevue, Washington, about 30 miles away from Everett.  But it is evident from  


 Trooper Ingram's affidavit for a search warrant that he checked the phone number on the  


 airbill and sought information concerning the sender after the dog had already sniffed the  


package.                     Since  the  focus  of  our  inquiry is  on what  Ingram knew immediately before  


 subjecting the package to the dog sniff, this information should not be considered as part of  


 the reasonable suspicion inquiry.   If considered, it would not be helpful  to Bochkovsky.  


 Trooper Ingram testified that the telephone number listed as that of the  sender  was a cell  


phone coming from Everett that had no identifier for the owner of the cell phone.  He also  


 testified that he found no "Mark Vu" in Everett,  but  found a Mark Tu Vu in Bellevue.  He  


 clarified at trial that "I learned that there was an individual by the name of Mark Tu Vu, T-u  



                                                                                                        - 5 -                                                                                                   2471

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

together, justified subjecting the package to a canine sniff.                                                                                                                     

                                             To facilitate the dogsniff,                                                           the package was placed on the floor of the FedEx                                                                                            

facility, along with other packages.                                                                                   The package remained on the floor for a short time                                                                                                             

until the dog sniff was conducted.                                                                                    There is no suggestion                                                               that any delay in delivery                                   

would have occurred if the dog had not indicated that contraband was present.                                                                                                                                                                                              

                        Why we conclude that the troopers had reasonable suspicion to briefly                                                                                                                                                        

                       detain the package and subject it to a dog sniff                                                                                                 

                                             Bochkovsky claims that Ingram lacked reasonable suspicion to subject the                                                                                                                                                                     

package to a canine sniff for narcotics.                                                                                               He argues that the indicators Ingram relied on                                                                                                      

to conclude that the package probably contained narcotics were innocuous and that the                                                                                                                                                                                                     

trooper conducted an inadequate investigation before concluding that "Mikey Sheeby"                                                                                                                                                                                    

was a fictitious name.                              

                                             Under our case law, police are required to have reasonable suspicion that                                                                                                                                                                 

a package contains illegal drugs before they may temporarily detain it or subject it to                                                                                                                                                                                                      

                                                                                                               10        This means that there must be some evidence that  

sniffing by a drug detection dog.                                                                                                                                                                                                                                                      

            9          (...continued)  

was the middle - maybe it's a middle name, maybe it's the extended version of the last  


name, I don't know, but I did find a name of Mark Tu [V]u out of that Washington area. ..."  


He added that this person's address was not the address listed on the package as that of the  


sender, and he made the same point in his affidavit for a search warrant.  




                       Gibson v. State, 708 P.2d 708, 710-11 (Alaska App. 1985) (temporary detention of  


package justified by reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1310-11 (Alaska  


App. 1985) (dog sniff of luggage justified by reasonable suspicion).  


                       We note that the prevailing view in other jurisdictions is that no seizure occurs when  


a shipped package is handled  and detained for the purpose of a dog sniff, so long as the  


package would be timely delivered if the dog sniff revealed no drugs and the carrier was not  


deprived of custody of the package.  See, e.g., State v. Eichers, 853 N.W.2d 114, 117, 123  



                                                                                                                                           - 6 -                                                                                                                                     2471

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


"serve[s] to differentiate the suspected package from the body of innocent packages."                                                                 


But it does not mean that every factor the police rely on must be suggestive of narcotics;  


reasonable suspicion may be based on a series of seemingly innocent acts which, when  



"taken together[,] warranted further investigation."                                        "Moreover, circumstances which  


appear innocent to the outside observer may suggest criminal activity to experienced law  



enforcement officers." 

                       In arguing that there was no reasonable suspicion for the dog sniff in this  


case, Bochkovsky relies primarily on McGee v. State, a case in which this Court found  


that the police lacked reasonable suspicion to subject a FedEx package to a spectrometer  


test.14  A spectrometer test, like a dog sniff, can reveal the presence of illegal drugs in an  


unopened package.  


      10    (...continued)  

(Minn. 2014)  (package taken off UPS conveyer, placed on floor, and subjected to dog sniff:  


no seizure under federal and state constitutions because no meaningful interference with  


individual's possessory interest in the property); see also 4 Wayne R. LaFave, Search and  


Seizure,  9.8(e) at 1009, 1011-12 nn.166, 173 (5th ed. 2012) (collecting cases). Likewise,  


the  prevailing   view  elsewhere  is  that  a  dog  sniff  of  a  detained  package  is  not  a  


constitutionallyprotectedsearch. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983)  


(subjecting luggage to a sniff by a narcotics dog is not a search because "the manner in which  


information is obtained through this investigative technique is much less intrusive  than a  


typical search").   "Most states that have addressed the use of drug detecting canines have  


followed Place  and have held that the use of drug detecting canines does not constitute a  


search." 1  LaFave , supra   2.2(g) at 693 n.384 (quoting State v. Scheetz, 950 P.2d 722  


(Mont. 1997)).  




           McGee v. State , 70 P.3d 429, 433 (Alaska App. 2003) (Mannheimer, J., concurring).  



            Cortez v. State, 2002 WL 31307848, at *3 (Alaska App. Oct. 16, 2002) (unpublished)  


(quoting Terry v. Ohio, 392 U.S. 1, 22 (1968)).  

      13   Id.  



           McGee v. State , 70 P.3d 429, 430 432 (Alaska App. 2003).  


                                                                      - 7 -                                                                 2471

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

                            In  McGee, the officer relied on some of the same factors to conclude that                                                                       

the package was suspicious: the airbill was addressed by hand, the package was sent via                                                                                        

overnight delivery, the shipping charge was paid in cash (about $20), and the package                                                                               

came from Tacoma, Washington, which the officer identified as a frequent "source" city                                                                                        

                    15   The package was also addressed to "Sam McGee." The officer testified that  

for drugs.                                                                                                                                                                   

he thought this name was comical and fictitious because he recalled "a legend of Sam  


McGee or something."16  But the officer did nothing to check this suspicion.  We upheld  


the trial court's conclusion that the seizure was not based on reasonable suspicion.  We  


concluded  that  the  officer's  belief  that  McGee's  name  was  fictitious  was  merely  


subjective and that, without this fact, there was little to distinguish the package from any  


small express package sent from one individual to another.17  


                            Bochkovsky  argues  that  the  factors  that  supported  Trooper  Ingram's  


decision to subject the package to a dog sniff - in particular, the handwritten label, the  


overnight delivery, and the payment in cash18  - were likewise inadequate to give rise  


to reasonable suspicion.   He also argues that Ingram's efforts to confirm whether the  


recipient "Mikey Sheeby" was fictitious were insufficient because "it was not reasonable  


for  Ingram to conclude that Mikey Sheeby did not exist in Alaska simply because he  


could not be found in APSIN or Mat-Com."  


       15     Id.  at 431.          

       16     Id.  



              Id. at 432.  

       18     There was testimony at trial that Washington state is a "source" state for drugs shipped  


to Alaska, but this fact was not brought out at the evidentiary hearing, and the superior court  


did not rely on this fact in upholding the search.   Although we have previously relied on  


evidence presented at trial to support the ruling of a trial court on a suppression issue, we find  


it unnecessary to do so here.  See Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003);  


Hubert v. State , 638 P.2d 677, 680 n.2 (Alaska App. 1981).  


                                                                                      - 8 -                                                                                2471


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

                              Bochkovsky points out that in                                       Cooley v. State                    - an unpublished case in                               

which we upheld the search of a package addressed to a fictitious recipient - the trooper                                                                                       

consulted not just APSIN, but another database that included recipients of the permanent                                                                                 

fund dividend and holders of hunting and fishing licenses before concluding that the                                                                                                    

addressee was fictitious.                             19  

                              In Cooley, there were also other indicators that the package might contain  


narcotics:  it was sent from an individual to another individual, in a used box rather than  


a UPS shipping box, and the box was heavily taped, which was suspicious to the officer  


because it suggested an attempt to eliminate odors. 20                                                                    It had also been mailed from a  


shipping and receiving company, a delivery method that allowed the shipper to remain  


anonymous.21                     The officer noticed ramen noodles stuck to the tape under the package,  


which  he  found odd because that commodity was readily available in Juneau.22                                                                                                        The  


package was also sent second-day air from California, a "hub" location for drugs coming  


from Mexico, at a cost of $63.99.23   The officer testified that he had observed about 1200  


parcels on the day in question, and that this was the only package he singled  out  for  



                              However, the "turning point" in the superior court's conclusion in Cooley  


that there was  reasonable suspicion that the package contained illegal drugs was the  


        19     Cooley v. State                  , 2009 WL 2568552 (Alaska App. Aug. 19, 2009) (unpublished).                                             



               Id. at *1.  

       21      Id.  

       22      Id.  



               Id. at *1-2.  



               Id. at *2.  


                                                                                           - 9 -                                                                                     2471

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


evidence   that   the   recipient   was   a   fictitious   person.                                    The   officer's   search   of   two  

databases indicated that there was no record of the recipient in Juneau and that the name                                                        


associated with the address on the package was not the recipient's name.                                                             


                        In the present case, we conclude that the physical details of the mailing of  


the package - mainly the handwritten label, the next-day delivery, and the payment in  


cash - would not have sufficed, standing alone,  to  distinguish the package from an  


innocent package shipped for express delivery from one individual to another.  But, as  


in  Cooley,  we  conclude  that  the  reasonable  suspicion  standard  was  satisfied  when  


Ingram determined that, in addition to these factors, the recipient of the package was  


apparently  fictitious  because  this  is  a  characteristic  not  shared  by  most  innocent  



                        Bochkovsky argues that Trooper Ingram had an insufficient basis for his  


conclusion that the addressee was probably fictitious.   But unlike the police officer in  


McGee, Trooper Ingram did not rest his conclusion on the fact that the name "Mikey  


Sheeby" was comical or strange.  Instead, he conducted an inquiry to see if there was a  


Mike or Mikey Sheeby, or some variant of that name, in APSIN, the statewide database.  


The APSIN database is not small and  not mainly composed of people with criminal  


records.          The APSIN annual report for 2012  states that there are over two million  


"records" in the system, of which approximately 1.8 million records relate to persons  


with no criminal history.28  

                                                Further, Ingram was not content to rely on APSIN; he also  


      25    Id.  

      26    Id.  at *1.   

      27    Id. at *3.  




            Dep't of Pub. Safety, State of Alaska, State Central Repository of Criminal Justice  


Information: AnnualReportofAuditsand Statistics - For Fiscal Year 2012 , (Feb.15,2012),  



                                                                        -  10 -                                                                  2471


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

searched   the   "Mat-Com"   database.     This   database   contributed   additional   relevant  

information:     there   was   no   Sheeby   in   the   system,   but   there   was   some   history   of  

individuals   with   other   names   at   the   address   given   on   the   package.     Based   on   this  

information, it was objectively reasonable for Ingram to conclude that "Mikey Sheeby"                                                                           

was probably fictitious.                         

                           We recognize that a search using APSIN is not all-encompassing:                                                                      children  

                                                                                                                                       29      But  reasonable  

and visitors to the state are not likely to appear in the database.                                                                                       

suspicion does not require an officer to rule out all possibility of innocent behavior.30  


The test serves as an objective standard for decisions that must be made quickly based  


on  "slight  proof."31                         Requiring  a  comprehensive  investigation  as  a  predicate  for  


reasonable  suspicion  would  subvert  the  purpose  of  that  test,  which  is  to  permit  


investigatory detentions on less than probable cause to determine the need for further  



                           For the reasons described above, we conclude that the reasonable suspicion  


standard was satisfied in this case.   Trooper Ingram articulated specific and objective  


       28     (...continued)  


available at,  

       29     But the surnames of resident children usually will appear, since children usually bear  


the surname of at least one parent.  


       30     See State v. Moran                    , 667 P.2d 734, 736 (Alaska App. 1983).                           

       31     Gibson v. State, 708 P.2d 708, 709-10 (Alaska App. 1985) ("[T]he proper question  


[is] whether the officer could reasonably surmise that the defendant was engaged in criminal  


activity; that is, whether he could form the notion on slight proof.").  




              See Coleman v. State,  553 P.2d 40, 44-45 (Alaska 1976) ("[W]e deal here with an  


entire rubric of police conduct - necessarily swift action predicated upon the on-the-spot  


observations of the officer on the beat - which historically has not been, and as a practical  


matter could not be, subjected to the warrant procedure.") (quoting Terry v. Ohio, 392 U.S.  


 1, 20 (1968)).  


                                                                                  -  11 -                                                                              2471

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


reasons which, "taken together warranted further investigation,"                                                                                          to ascertain whether         

the FedEx package contained illegal drugs.                                          

                The sufficiency of the evidence question                                   

                               Bochkovsky was convicted of violating AS 11.71.020(a)(1), which applies                                                                                    

when a person knowingly "possesses any amount of a schedule IA controlled substance                                                                                                

                                                                 34       Oxycodone  is  a  schedule  IA  controlled  substance.35  

with   intent   to   ...   deliver."                                                                                                                                                                        

Bochkovsky argues that there was insufficient evidence to convict him of this crime with  


respect to the intent to deliver element.  


                               "When a defendant challenges the sufficiency of the evidence to support  


the verdict, the test is whether, viewing the evidence (and the inferences to be drawn  


from that evidence) in the light most favorable to upholding the  verdict, fair-minded  


people could conclude that the State had proved these elements."36  


                               Bochkovsky presents a two-part argument challenging the sufficiency of  


the evidence used to prove an intent to deliver the drugs.  He first claims that there was  


no evidence that he "actually or constructively possessed the 129 Oxy[C]ontin pills  


found in the original box."  This argument is irrelevant.  Under the statute, the State did  


not have to prove that Bochkovsky either actually or constructively possessed all 129  


pills.  The statute merely requires possession of "any amount" of a controlled substance.  


        33      Cortez v State                 , 2002 WL 31307848, at *3 (Alaska App. Oct. 16, 2002) (unpublished)                                                          

(quoting  Terry, 392 U.S. at 22).                             



                See Bell v. State, 519 P.2d 804, 809 n.17 (Alaska 1974) (noting that the State must  


demonstrate knowing possession).  



                AS 11.71.140(b)(1)(N).  



               Hoekzema v. State , 193 P.3d 765, 767 (Alaska App. 2008) (citing Eide v. State , 168  


P.3d 499, 500-01 (Alaska App. 2007)).  


                                                                                              -  12 -                                                                                          2471

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

                                                                                                The second part of Bochkovsky's argument is more germane, and consists                                                                                                                                                                                                                                                                                                                                                                                                       

 of two subparts.                                                                                                      He argues (1) that there was insufficient evidence that he knew what                                                                                                                                                                                                                                                                                                                                                                                                     

the package contained; and (2) that even if he knew the package originally contained 129                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

pills, this knowledge was insufficient to show that he intended to deliver them.                                                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                               As to the first question, we conclude that the evidence was sufficient to                                                                                                                                                                                                                                                                                                                                                                                                                                             

permit a reasonable inference that Bochkovsky knew the package contained drugs.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        His  

brother testified that Bochkovsky had moved to Alaska from Everett, Washington, only                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

 a few weeks before the incident in question and that he had been expecting a package.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 This testimony suggests that the shipment was not a surprise to him.                                                                                                                                                                                                                                                                                                                                                                                                                            The username for                                                                                             

the computer found in Bochkovsky's room was "Mikey," and his brother confirmed that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Bochkovsky goes by the name "Mikey."                                                                                                                                                                                                                                                         Bochkovsky accepted delivery of the package                                                                                                                                                                                                                                   

-  addressed to a person whose first name was "Mikey" - and he opened the package                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

within minutes of receiving it.                                                                                                                                                                                Although Bochkovsky answered the door for the delivery                                                                                                                                                                                                                                                                                                      

person, he did not respond when the troopers knocked and announced their presence.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Furthermore, the physical evidence showed that when Bochkovsky opened the package,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

he immediately went to the bag of candy in which the drugs had been originally packed,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

 opening the bag and scattering the candy on the bedroom floor.                                                                                                                                                                                                                                                                                                                                                                                         The troopers also found                                                                                                           

 a slip of paper with the package's FedEx tracking number written on it in the room where                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

he was staying.                                                                                               While the troopers did not find much other evidence that Bochkovsky                                                                                                                                                                                                                                                                                                                                                         

was   a   drug   dealer,   they   did   find   two   money   transfer   orders   for   $1000   each   in  

Bochkovsky's wallet.                                                                                                                                      From these circumstances, a reasonable jury could conclude that                                                                                                                                                                                                                                                                                                                                                                                

Bochkovsky knew what the shipped package originally contained, and that therefore he                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

knowingly possessed the one remaining pill when the package was delivered to him.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                The second question is whether, based on the inference that Bochkovsky                                                                                                                                                                                                                                                                                                                                                                     

knew that the original package contained 129 pills, a jury could also reasonably infer that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

he intended to sell them.                                                                                                                                                      As already noted, the troopers found little apart from the two                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                               -   13 -                                                                                                                                                                                                                                                                                              2471

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

money transfer orders to indicate that Bochkovsky was involved in drug dealing.                                                                                                                                                                                                                                                                                                                                                                  The  

troopers did not find other suspicious materials such as scales, ledgers,                                                                                                                                                                                                                                                                                                                         or   residues.    

Defense counsel argued this lack of evidence in closing, while the prosecutor asserted                                                                                                                                                                                                                                                                                                                                         

that Bochkovsky was new to Alaska and was "setting up shop."                                                                                                                                                                                                                                                  

                                                                       But the state did introduce evidence to the effect that 129 OxyContin pills                                                                                                                                                                                                                                                                                                    

 of 80 milligrams each was more than an individual would possess for personal use.                                                                                                                                                                                                                                                                                                                                                                       At  

trial, Ingram explained that when the troopers found the OxyContin pills, "[they] knew                                                                                                                                                                                                                                                                                                                                                       

through [their]                                                                  training and experience that the amount ...                                                                                                                                                                                                    found ha[d] a high dollar                                                                                  

value."   He stated that the pills were "pretty desirable in the drug trade," since a pill of                                                                                                                                                                                                                                                                                                                                                                 

 80 milligrams was the largest size of OxyContin pills.                                                                                                                                                                                                                              Ingram added that normally street                                                                                                                       

 sales of OxyContin are for one or two pills.                                                                                                                                                                                                 He further explained that "[a]n end user                                                                                                                                                             

would   just   typically   buy   one   pill.     One,   it   helps   get   their   fix;   two,   [the   pills   are]  

 expensive, they're just                                                                                               tryingto                                     maintain their habit. ... So you don't need                                                                                                                                                                            these elaborate   

 scales [or] packaging materials ... ."                                                                                                                                                             He estimated that one pill would sell for $100 to                                                                                                                                                                                                          

 $120 in the Mat-Su Valley and $220 to $250 in more remote areas.                                                                                                                                                                                                                                                                                              He thought that 129                                                                    

pills had a street value of over $10,000.                                                                                                                                                                            He stated that this quantity was a "mini gold                                                                                                                                                                                 

mine" which he believed "was for the purposes of distribution."                                                                                                                                                                                                                                                                                    

                                                                       It is well established that                                                                                                    possession of a large quantity of drugs is evidence                                                                                                                                                                    

                                                                                                     37             We conclude that based on this evidence, a reasonable jury could  

 of intent to deliver.                                                                                                                                                                                                                                                                                                                                                                                                                       

 conclude that Bochkovsky intended to sell the drugs.  


                  37                See,   e.g.,   Nelson   v.   State ,   2012   WL 399239,                                                                                                                                                                                              at   *3   (Alaska App.                                                                                 Feb.   1,   2012)  

 (unpublished);  United Statesv. Johnson                                                                                                                                                                , 357 F.3d                                        980, 984 (9th                                                        Cir. 2004) ("Ajury                                                                              can infer  

intent to distribute from possession of a large quantity of drugs.");                                                                                                                                                                                                                                                                    United States v. Jackson                                                                                                        ,  

 55 F.3d 1219, 1226 (6th Cir. 1995) ("Intent to distribute can be inferred from the possession                                                                                                                                                                                                                                                                                                                     

of a large quantity of drugs, too large for personal use alone.");                                                                                                                                                                                                                                                   United States v. Howard                                                                                                       , 966   

F.2d 1362, 1365 (10th Cir. 1992);                                                                                                                                             United States v. Samad                                                                                                    , 754 F.2d 1091, 1096, n.12 (4th                                                                                                              

Cir. 1984).   

                                                                                                                                                                                                                       -   14 -                                                                                                                                                                                                                    2471

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

               The small quantities mitigator                  

                              Bochkovsky additionally argues that the superior court erred in rejecting                                                                       

the   "small   quantities"   mitigating   factor   of   AS   12.55.155(d)(13).     This   subsection  


                                             (d)   The following factors shall be considered by the                                                         


                              sentencing court if proven in accordance with this  section,  

                              and          may           allow           imposition                 of       a      sentence               below            the  

                              presumptive range set out in AS 12.55.125:                               


                                             . . . .  


                                             (13)  the  defendant is convicted of an offense  

                                             specified in AS 11.71 and the offense involved                                       

                                             small quantities of a controlled substance ... .                                                   

                              Possession of                  any amount of a IAcontrolled                                    substance with intent to deliver                     

                                            38    The maximum sentence for a Class A felony is 20 years and the  

is a Class A felony.                                                                                                                                                                      

presumptive term for a first felony offender such as Bochkovsky is 5 to 8 years.39                                                                                                      The  


trial court sentenced Bochkovsky to a term within this range, 6 years.  


                              The function of a mitigating factor is to permit a sentencingjudge to impose  


a sentence that falls below the sentencing range.  A defendant has the burden of proving  


mitigating  facts  by  clear  and  convincing  evidence.40                                                                        Trial  court  findings  of  fact  


concerning mitigating factors are reviewed deferentially and may be reversed only if  


clearly erroneous; whether a mitigating factor applies to a particular set of facts is a  


question of law which is reviewed de novo.41  


        38     AS 11.71.020(d).   



               AS 12.55.125(c)(1).  

        40     AS 12.55.155(f)(1); Whiting v. State, 191 P.3d 1016, 1021 (Alaska App. 2008).  




               State v. Parker, 147 P.3d 690, 694 (Alaska 2006).  


                                                                                          -  15 -                                                                                     2471

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

                        Bochkovsky argues that because he actually possessed only one pill his                                                        

offense   "involved"   small   quantities   of   a   controlled   substance.     We   see   little   to  

recommend this argument.                          In assessing mitigating factors, courts must take "a realistic                              


assessment of the totality of the evidence."                                                                                                         

                                                                                 Taking such an approach in this case, the  


sentencing  judge rejected the small quantity mitigator,  finding that Bochkovsky was  


"supposed to have received 129 [pills]" and that "one pill doesn't make a lot of sense in  


[the context of Bochkovsky's conviction of intent to distribute]."  We agree with this  


conclusion and find no error.  


                        Appraised realistically, Bochkovsky's offense involved 129 pills, and it was  


this quantity, in light of its value, that gave rise to the inference that he had an intent to  


sell OxyContin.                 It was his burden  to prove the small quantity mitigator.                                                Thus,  for  


sentencing purposes,  he was required to prove that he intended to sell only  a  small  


quantity of OxyContin - that is, that he did not intend to sell all 129 pills, but only a  


small number of pills.  He presented no evidence on this issue and thus did not carry his  




                        Where police remove most of the drugs from a package prior to a controlled  


delivery,  an accused cannot receive a windfall based on the small quantity  of drugs  


actually delivered.  As stated in United States v. Fullilove:  


                        Several  of  our  sister  circuits  have  addressed  this  same  


                        question.  All have concluded that a defendant may be held  


                        accountable under relevant conduct principles for contraband  


                        removed from a package prior to a controlled delivery ... .  


                                    In each of these cases, the court noted the fortuity of  


                        intervention by law enforcement officials, stating that the fact  


                        of the intervention did not alleviate the seriousness of the  


                        defendant's conduct.  

      42    Juneby v. State            , 665 P.2d 30, 39 (Alaska App. 1983).                             

                                                                        -   16 -                                                                  2471

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

                                                          .  .  .  .  

                                                         Our    decision    is    supported    also    by    sound    policy  

                                   considerations.   ...   A   holding   that   Fullilove,   who   clearly  

                                   intended to obtain whatever quantity of cocaine base was in                                                                                                                                           

                                  the   package,   should   not   be   held   accountable   for   the   full  

                                   amount, could have the perverse effect of encouraging law                                                                                                                                       

                                   enforcement officers to take unacceptable risks for the sake                                                                                                                                 

                                   of obtaining a sentence that accurately reflects the gravity of                                                                                                                                      


                                  the defendant's conduct.                                                                    

                                  We agree with this rationale.  



                                  For the reasons stated, the judgment of the superior court is AFFIRMED.  


43          United State v. Fullilove                                                         , 388 F.3d 104, 107-08 (4th Cir. 2004) (citations omitted).                                                                                                      

                                                                                                                               -   17 -                                                                                                                                      2471

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

Judge MANNHEIMER, dissenting.  


                                                                              I disagree with this Court's resolution of this appeal because I conclude                                                                                                                                                                                                                                                                                                   

that the information known to the police was not adequate to constitute the "reasonable                                                                                                                                                                                                                                                                                                                                                          

 suspicion" that our law requires before the police can remove a package from the stream                                                                                                                                                                                                                                                                                                                                                                                      

of commerce and subject it to specialized investigative techniques (like having a trained                                                                                                                                                                                                                                                                                                                                                                             

dog sniff the package).                                                                                                                

                                                                              As explained in the majority opinion, the trial court relied on a combination                                                                                                                                                                                                                                                                             

of   several   factors   when   reaching   the   conclusion   that   the   troopers   had   sufficient  

"reasonable suspicion" to justify removingthe                                                                                                                                                                                                                       package from the stream of commerce and                                                                                                                                                                                      

having a trained dog sniff the package for drugs.                                                                                                                                                                                                                                       But as the majority opinion concedes,                                                                                                                               

this information - even considered in the aggregate - was marginal.                                                                                                                                                                                                                                                                                                                                                   

                                                                              The package had a handwritten label.                                                                                                                                                                                         The trooper testified that this fact                                                                                                                                                 

 suggested that the package was probably not a commercial shipment.                                                                                                                                                                                                                                                                                                                                               The person who                                                            

 shipped the package paid FedEx in cash - again, an apparent indication that this was                                                                                                                                                                                                                                                                                                                                                                                                        

not a commercial shipment.                                                                                                                                          

                                                                              But these factors merely suggest that the person who shipped the package                                                                                                                                                                                                                                                                                                                 

was not a typical business shipper - that the shipper was an individual who either was                                                                                                                                                                                                                                                                                                                                                                                                        

running a small business or was using FedEx to ship a package for personal reasons.                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                              The State also relies on the fact that the shipper paid approximately $68.00                                                                                                                                                                                                                                                                                                                    

to have the package sent "next day air".                                                                                                                                                                                           According to the trooper, this fact was a "pretty                                                                                                                                                                                  

 significant" indication that the package contained drugs.                                                                                                                                                                                                                                                                            But the trooper's explanation                                                                                

of this purported significance was illogical,                                                                                                                                                                                                                to the point of being nonsensical.                                                                                                                                                                       Here is   

what the trooper said:                                                                            


                                                                              We                             know                                        that                             individuals                                                             [who                                      ship]                                  drugs                                      through  

                                                                              commercial modes ... often pay cash because the items inside                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                           -   18 -                                                                                                                                                                                                                                         2471

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

                                                                     [the   package]   are   more   valuable   than   the   money   they're  

                                                                     [spending] to have a speedy delivery of that package.                                                                                                                                                                          

                                                                    Even if we assume that the trooper misspoke - that he meant to say "often                                                                                                                                                                                                                                                                          

 ship 'next day air' " instead of "often pay cash", this purported explanation still fails to                                                                                                                                                                                                                                                                                                                                              

 support an                                               inference of criminality - because it applies to                                                                                                                                                                                                       anyone  who is sending or                                                                                                

ordering something of                                                                                                value   through   the   mail or                                                                                                             through   commercial shippers                                                                                                                                   like  


                                                                    No matter                                           what  is being shipped (                                                                                        e.g., drugs (lawful or unlawful), jewelry,                                                                                                                           

custom   auto   parts,   DVDs,   or cosmetics),                                                                                                                                                                                 one can reasonably expect that the more                                                                                                                                                    

valuable the contents of the package, the less likely it is that the sender or purchaser will                                                                                                                                                                                                                                                                                                                                       

balk at paying a higher fee for speedy delivery - since the increase in the shipping fee                                                                                                                                                                                                                                                                                                                                              

will be only a tiny percentage of the entire cost of the transaction.                                                                                                                                                                                                                                                                        

                                                                    The trooper also testified that the package                                                                                                                                                                                      in   this case was suspicious                                                               

because it was shipped from a "Kink[o's] / FedEx copy" - which the trooper incorrectly                                                                                                                                                                                                                                                                                                           

identified as "basically a drop-box".                                                                                                                                                     The trooper asserted that people who ship drugs                                                                                                                                                                                

will use                                  drop-boxes,   rather   than   transacting   the   shipment   face-to-face   with   a   store  

 employee, because this "helps to further distance [the shipper] from being tied back to                                                                                                                                                                                                                                                                                                                                                   

the package".                                                           

                                                                    But as the majority opinion explains in footnote 7, the trooper's assertion                                                                                                                                                                                                                                                          

 about a "drop-box" was wrong.                                                                                                                                      "Kinko's / FedEx copy" was the name of a chain of                                                                                                                                                                                                                     

 stores.   The package in this case was shipped from an office, not a drop-box.                                                                                                                                                                                                                                                                                                                         

                                                                    The majority opinion concedes that the foregoing factors,                                                                                                                                                                                                                                                   even taken in                                               

combination, "would not have sufficed ... to [sufficiently] distinguish the package [in this                                                                                                                                                                                                                                                                                                                                        

case] from an innocent package shipped for express delivery from one individual to                                                                                                                                                                                                                                                                                                                                                         


                                                                                                                                                                                                             -   19 -                                                                                                                                                                                                           2471

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

                                               But   my   colleagues   in   the   majority   believe   that   these   factors   became  

 sufficient because of the addition of one final factor:                                                                                                                                   the trooper's conclusion that the                                                                      

person to whom the package was addressed, "Mikey Sheeby", was a fictitious person.                                                                                                                                                                                                

                                               According to the trooper, he concluded that this name was likely fictitious                                                                                                                                                      

because, when he ran the name "Mikey Sheeby" in the Alaska Public Safety Information                                                                                                                                                                                 

Network   (APSIN),   and   in   a   separate   database   that   records   the   details   of   all police   

 dispatches   within   the   Matanuska-Susitna   Borough,   he   found   no   entry   for   "Mikey  

 Sheeby", "Michael Sheeby", or "Mike Sheeby".                                                                                                                           The trooper                                 did  verify that the address                                    

 listed for Mikey Sheeby was a legitimate address (although the trooper found no record                                                                                                                                                                                                

 of anyone by the name of Mikey Sheeby connected to that address).                                                                                                                                                                                

                                               My colleagues conclude that the trooper's search of these two databases                                                                                                                                                      

was a reasonable effort, and that the lack of record for the name "Mikey Sheeby" was a                                                                                                                                                                                                                    

 substantial indication that no such person existed.                                                                                                                          

                                               But the name "Mikey Sheeby" suggested that the recipient might be a child.                                                                                                                                                                                       

 The trooper had access to the database of persons who had applied for the Alaska                                                                                                                                                                                                    

                                                                                              1 - a list that was much more likely than APSIN to contain  

Permanent Fund Dividend                                                                                                                                                                                                                                                             

the names of children.  But the trooper did not use this database.  


                                               The majority opinion nevertheless contends that the absence of the name  


 "Mikey Sheeby" in APSIN is significant because the APSIN database is quite  broad.  


 Citing the APSIN  annual report for Fiscal Year 2012 (the latest year posted on the  


Internet),  the  majority  asserts  that  this  database  contains  over  two  million  person  


records. 2  


            1           See Cooley v. State                                              , unpublished, 2009 WL 2568552, at *1 (Alaska App. 2009).                                                                                                                                                



                       Dep't of Pub. Safety, State of Alaska, State Central Repository of Criminal Justice  


Information: AnnualReportofAuditsand Statistics - For Fiscal Year 2012 ,(Feb.15,2012),  


available at,  


                                                                                                                                             - 20 -                                                                                                                                           2471


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

                            On its face, this figure appears astounding:                                                it amounts to approximately       

three times the number of people currently living in this state.                                                              But this number becomes             

less astounding when you understand that these two million "person records" are the                                                                                           

accumulation of years of data reporting.                                             

                            For   example,   APSIN   contains   the   criminal history                                                    records   of   325,825  

                                      3   and these persons have  generated records of 1,580,051 separate  

different persons,                                                                                                                                                 

criminal  charges. 4                         And  the  largest  portion  of  APSIN  records  -  slightly  under  



 1,340,000 - are based on the issuance of driver's licenses.  


                            Obviously, a search of driver's license records and criminal history records  


is not the type of search that is likely to uncover the names of children.   The majority  


opinion concedes as much: it expressly acknowledges that "children and visitors to [this]  


state are not likely to appear in the [APSIN] database."  


                            But instead of criticizing the trooper for confining himself to these data- 


bases when there was reason to believe that the addressee of a package was a child, the  


majority concludes that the trooper's search of APSIN was good enough.  


                            According to the majority, the trooper in this case was faced with the kind  


of decision that "[had to] be made quickly", and therefore the law demands only "slight  


proof".  I disagree.  I do not know for certain how much longer it would have taken the  


trooper to search the list of Permanent Fund Dividend applicants, but there is nothing in  


the record to suggest that a search of this additional database would have lengthened the  


trooper's investigation significantly.  


                            Accordingly, I dissent from the Court's decision to uphold this search.  


       3      Id.  at   13.  

       4      Id.  at  31.   

       5      Id.  at   16.  

                                                                                    - 21 -                                                                                2471



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