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Ronald Phillip Alleva v. State of Alaska, (12/31/2020) ap-2687

Ronald Phillip Alleva v. State of Alaska, , Grubstake Auction Co., Inc. v. State of Alaska (12/31/2020) ap-2687

                                                                    NOTICE
 
 

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              formal errors to the attention of the Clerk of the Appellate Courts:  



                                            303 K Street, Anchorage, Alaska  99501
 
 

                                                          Fax:  (907) 264-0878
 
 

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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RONALD PHILLIP ALLEVA,  

                                                                                       Court of Appeals No. A-13441
 
 

                                              Appellant,                           Trial Court No. 3AN-18-08880 CR
 
 



                                  v.  



STATE OF ALASKA,                                                                                     O P I N I O N

 



                                              Appellee.  



GRUBSTAKE AUCTION CO., INC.,  

                                                                                       Court of Appeals No. A-13442
 
 

                                              Appellant,                           Trial Court No. 3AN-18-09026 CR
 
 



                                  v.  



STATE OF ALASKA,  



                                              Appellee.                              No. 2687 - December 31, 2020
 
 



                       Appeal   from   the   District   Court,   Third   Judicial   District,  

                                                

                       Anchorage, Leslie Dickson, Judge.  



                       Appearances:   Paul J. Nangle, Paul J. Nangle & Associates,  

                                                 

                       Anchorage, for the Appellant.   Sophie A. Stratton, Assistant  

                                                                             

                       Attorney General, Office of Special Prosecutions, Anchorage,  

                                                                       

                       and  Kevin  G.  Clarkson,  Attorney  General,  Juneau,  for  the  

                                                                                    

                       Appellee.  


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

                          Before:    Allard, Chief Judge, and Wollenberg and Harbison,     

                          Judges.  



                          Judge HARBISON.  



                          On June 6, 2018, Ronald Phillip Alleva, the owner of Grubstake Auction                                                         



Co., Inc., directed Grubstake employees to apply a chemical agent, Zappit 73, along a                                                                                  



public   right   of   way   in   Anchorage.     For  this   conduct,   a   jury   convicted   Alleva   and  

Grubstake of reckless endangerment and pollution of land, air, or water.                                                                    1  

                                                                                                                                                                 

                                                                                                                                               The jury also  



                                                                                                                                                     

convicted  Alleva  and  Grubstake  of  two  crimes  relating  to  the  use  of  pesticides  



                                                                                                                        2 

                                                                                                                              

(unauthorized pesticide distribution and misuse of a pesticide ).  



                                                                                                                                                                     

                          On  appeal,  Alleva and  Grubstake contend  that the term "pesticide"  is  



                                                                                                                                                        

unconstitutionally vague as used in the provisions of law defining the latter two offenses,  



                                                                                                                                                                  

and that the trial court erred in failing to dismiss these charges prior to trial.  Alleva and  



                                                                                                                                                        

Grubstake also argue that the trial court erred in allowing the State to introduce evidence  



                                                                                                                                             

that both the state and the federal government categorize Zappit 73 as a pesticide.  



                                                                                                                                                        

                          For the reasons explained in this opinion, we conclude that the statutory  



                                                                                                                                                                 

definition of pesticide is not unconstitutionally vague.  We also conclude that the trial  



                                                                                                                                                                  

court did not abuse its discretion in admitting evidence that Zappit 73 is a state and  



                                                                                                                                                

federally regulated pesticide.  We thus affirm the judgment of the district court.  



                                                              

             Factual and procedural background  



                                                                                                                                                     

                          The charges in this case arose after Alleva instructed several Grubstake  



                                                                                                                                                                    

employees  to  spread  Zappit  73  along  a  public  right  of  way  on  Karluk  Street  in  



                                                                                                                                                     

Anchorage. Several people,includingunhousedindividualsliving nearby and volunteers  



       1     AS 11.41.250 and AS 46.03.710, respectively.  



       2     AS 46.03.730 and 18 Alaska Administrative Code (AAC) 90.020(5), respectively.  



                                                                                - 2 -                                                                           2687
 


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

 serving them, subsequently observed a strong odor of chlorine or bleach in the area and                                                                                                                                                                                                                                                                                                                                                        



 experienced eye and lung irritation.                                                                                                   



                                                                      According to Alleva, he had tasked his employees with picking up trash                                                                                                                                                                                                                                                                                             



 along the public right of way and then applying Zappit 73 to the area as a disinfectant.                                                                                                                                                                                                                                                                                                                                                                                



The label on his containers of Zappit 73 characterized the chemical as a "pesticide,"                                                                                                                                                                                                                                                                                                        



"bactericide," and "algaecide," and warned that Zappit 73 was highly corrosive, could                                                                                                     



cause irreversible eye damage and skin burns, was toxic to fish and aquatic organisms,                                                                                                                                                                                                                                                                                                                    



 and   if   combined   with  organic   matter   or   certain   other   substances,   could   produce  



hazardous gases.                                                                         The Anchorage Fire Department ultimately removed 1,403 pounds of                                                                                                                                                                                                                                                                                               



 soil from the Karluk Street area that had been contaminated by Zappit 73.                                                                                                                                                                                                                                                                                                                          



                                                                      Prior to trial, Alleva and Grubstake filed a motion to dismiss the charges                                                                                                                                                      



of pesticide pollution and misuse of a pesticide, arguing that the definition of "pesticide"                                                                                                                                                                                                                                                                                                              



was unconstitutionally vague.                                                                                                                                 They also filed a motion in limine to exclude evidence                                                                                                                                                                                               



that Zappit 73 was a state and federally regulated pesticide.                                                                                                                                                                                                                                                         The trial court denied both                                                                                          



motions.   



                                                                      This appeal followed.                                         



                                    The statutory definition of pesticide is not unconstitutionally vague                                                                                                                                                                                                                                                        



                                                                      Alaska Statute 46.03.730 prohibits the spraying or application of certain                                                                                                                                                                                                                                                                                



chemicals and pesticides "in a manner that may cause damage to or endanger the health,                                                                                                                                                                                                                                                                                                                                          



welfare, or property of another person, or in a manner that is likely to pollute the air, soil,                                                                                                                                                                                                                                                                                                                                               



or   water   of   the   state,"   without   prior   authorization   from   the   Alaska   Department   of  



                                                                                                                                                           3  

Environmental Conservation.   Additionally, 18 AAC 90.020(5) prohibits the use of a  



                                                                                                                                                                                                                                                                                                                                                                                                                                                       

pesticide "in a manner that is inconsistent with labeling instructions."  For purposes of  



                  3                AS 46.03.730; see also AS 46.03.900(6).  



                                                                                                                                                                                                                      -  3 -                                                                                                                                                                                                                 2687
 


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

both provisions, the term "pesticide" is defined as "any chemical or biological agent                                                                                     



intended for preventing, destroying, repelling, or mitigating plant or animal life and any                                                                                    



substance intended for use as a plant regulator, defoliant or desiccant, including but not                                                                                     



                                                                                                                                                                                   4  

limited to insecticides, fungicides, rodenticides,                                                herbicides,nematocides, and biocides."                                               



                            Alleva and Grubstake contend that the definition of pesticide is so vague  

                                                                                              



that it deprives them of due process because what constitutes a pesticide is contingent  

                                                                                                                                                          



upon "the subjective intention of some unknown and undefined person."  Specifically,  

                                                                                                                                                           



Alleva and Grubstake point to the portion of the definition that refers to "any chemical  

                                                                                                                                                                   



or biological agent intended for preventing, destroying, repelling, or mitigating plant or  

                                                                                                                                                                                  



animal life and any substance intended for use as a plant regulator, defoliant or desiccant,  

                                                                                                                                                                 



including   but   not   limited   to   insecticides,   fungicides,   rodenticides,   herbicides,  

                                                                                                                                                            



                                                             5  

                                                                                                                             

nematocides,  and  biocides."                                       According  to  Alleva  and  Grubstake,  this  language  

                                        



                                                                                                                                                              

incorporates a subjective intent element so ambiguous that it fails to put a reasonable  



                                                                                                                                                                     

person on notice of what constitutes a pesticide because the statute does not identify  



                                                                                                                                                                           

"who  holds  the  intention"  -  e.g.,  the  corporate  manufacturer  of  Zappit  73,  each  



                                                                                                                     

individual user of the product, or some other person or entity.  



                                                                                                                                                                              

                            A criminal statute or ordinance is unconstitutional when it is "so vague that  



                                                                                                                                                                                  

[people] of common intelligence must necessarily guess at its meaning and differ as to  



       4      AS 46.03.900(19); see also  18 AAC 90.990(37) (providing substantively the same   



definition); cf. 18 AAC 90.990(36) (defining pest to include "any insect, rodent, nematode,   

fungus, weed, and other forms of terrestrial or aquatic plant or animal life, bacterium, virus,   

or other microorganism, except a virus, bacterium, or other microorganism on or in a living   

h u m a n              o r         o t h e r          a n i m a l " ) ;               B i o c i d e ,             M E R R I A M - W E B S T E R . C O M ,  

https://www.merriam-webster.com/dictionary/biocide (last visited Nov. 30, 2020) (defining  

a biocide as "a substance (such as an algicide or fungicide) that destroys or inhibits the  

                                           

growth or activity of living organisms").  



       5      AS 46.03.900(19) (emphasis added).  



                                                                                      - 4 -                                                                                 2687
 


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

                              6  

its application."                Alaska recognizes that "the possibility of difficult or borderline cases                                                  



will not invalidate a statute where there is a hard core of cases to which the ordinary                                                             



                                                                                                                                   7  

person would doubtlessly know the statute unquestionably applies."                                                                                                 

                                                                                                                                       In such cases, a  



                                                                                                                                

defendant may not "complain of lack of adequate notice, and [a] void-for-vagueness  



                                                                                                                                                                

contention will succeed only if the statute is otherwise so nebulous that it must be  



                                       8  

                                                                                                                                                              

stricken on its face."                    Alleva and Grubstake have the burden of proving their claim that  



                                                                                                             9  

                                                                                                                 

the statutory definition of pesticide is void for vagueness. 



                                                                                                                                                       

                         We note that the phrase "intended for" is common parlance in Alaska  



                                                                                                         10  

                                                                                                                                                                  

statutes, including statutes governing criminal offenses.                                                    One such example is found in  



                                                                                                                                                  

AS 11.71.900(10), which defines the term "drug," in relevant part, as "a substance  



                                                                                                                                                                  

intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in  



                                          11  

                                                                                                                                                             

                                                 The  Alaska  Supreme  Court  examined  this  definition,  and  

humans  or  animals." 



                                                                                                                                 12  

                                                                                                                                             

specifically the intent requirement, in Ross Laboratories v. Thies.                                                                     In determining  



                                                                                                                                                     

whether this definition of "drug" applied to an undiluted glucose solution, the supreme  



                                                                                                                                                           

court relied on evidence of the manufacturer's intent - an approach, the supreme court  



      6      State v. Lawler, 919 P.2d 1364, 1365-66 (Alaska App.1996) (quoting F/V Am. Eagle  



v.  State,  620  P.2d  657,  665  (Alaska  1980))  (applying  de  novo  review  to   a   question  of  

statutory interpretation).  



      7      Stock v. State, 526 P.2d 3, 9 (Alaska 1974).  



       8     Id. at 10.  



      9      Lawler , 919 P.2d at 1367 (citation omitted).  



       10    See, e.g.,  AS  04.16.110;  AS  11.46.990(7);  AS  11.71.900(10); AS 11.81.900(b)(23)(A)  



and (24).  



       11    AS 11.71.900(10) (emphasis added).  



       12    Ross Labs. v. Thies, 725 P.2d 1076, 1080-81 (Alaska 1986).  



                                                                              - 5 -                                                                         2687
 


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

                                                                                                                                                                                 13  

noted, that federal courts applied when interpreting an analogous federal statute.                                                                                                    Based  



on both an entry in the Physician's Desk Reference - an entry based on "information                                                                                    



made available by manufacturers" - as well as the internal manufacturer's training                                                                                                



manual, the supreme court concluded that the glucose solution was a drug within the                                                                                                          



                                                    14  

meaning of the statute.                                  



                                                                                                                                                                                                

                              We follow the same approach with regard to the definition of pesticide in  



                                                                                                                                                                  

AS 46.03.900(19).   The statutory phrase "intended for" refers to the manufacturer's  



                                                                                                                                                                                        

stated intent, rather than the subjective intent of individual users or the speculative intent  



                                                                                                             

of some unknown and unknowable third party.  



                                                                                                                                                                                            

                              In Alleva and Grubstake's case, numerous photographs submitted at trial  



                                                                                                                                                                                              

established the manufacturer's intent, manifested in the warning labels attached to the  



                                                                                                                                                                                     

particular buckets of Zappit 73 that Alleva directed his employees to spread on Karluk  



                                                                                                                                                                                           

Street  -  labels  that  characterized  Zappit  73  as  a  "pesticide,"  "bactericide,"  and  



                                                                                                                                                                              

"algaecide" toxic to fish and aquatic organisms, with the potential to produce hazardous  



                                                              

gases if applied to organic matter.  



                                                                                                                                                                                         

                              In light ofthesewarning labels, an ordinary personwoulddoubtlessly know  



                                                                                                                                                                           15 

                                                                                                                                                                                           

that Zappit 73 meets the statutory definition of pesticide under Alaska law.                                                                                                    We thus  



                                                                                                                                                                          

conclude that the statutory definition of pesticide is not unconstitutionally vague.  



        13     Id. (citing United States v. 250 Jars of U.S. Fancy Pure Honey, 218 F.Supp. 208, 211  



(E.D. Mich. 1963), aff'd, 344 F.2d 288 (6th Cir. 1965)).  



        14     Id. at 1080.  



        15     See Stock v. State, 526 P.2d 3, 9 (Alaska 1974).  



                                                                                             -  6 -                                                                                       2687
 


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

           The trial court did not err in allowing the State to present evidence that  

                                                                                                                      

          Zappit 73 is a registered pesticide under state and federal law  

                                                                                                      



                     Alleva and Grubstake also argue that the trial court erred in denying their  

                                                                                                                               



motion in limine to exclude evidence that Zappit 73 was a registered pesticide under state  

                                                                                                                               



and federal law.  According to Alleva and Grubstake, this evidence was so prejudicial  

                                                                                                          



that it tainted the jury's verdict on all four charges, even the two offenses that did not  

                                                                                                                                 



rely on the statutory definition of pesticide.  

                                                                     



                     In ruling on the motion in limine prior to trial, the trial court noted that  

                                                                                                                      



evidence that Zappit 73 was a state and federally regulated pesticide was seemingly  

                                                                                                                      



relevant to the charges against Alleva and Grubstake.  But the trial court did not make  

              



a definitive ruling.  Instead, the court denied the motion in limine without prejudice and  

                                                                                                                                 



invited Alleva and Grubstake to renew their objection at trial when the court could assess  

                                                                                                                             



the admissibility of the evidence in the context of the other evidence presented as well  

                                                                                                                               



as  the  parties'  respective  theories  of  the  case,  rather  than  in  a  pretrial  evidentiary  

                                                                                                                    



"vacuum."  At trial, however, when the State presented testimony that Zappit 73 was a  

                                                                                                                                    



state and federally regulated pesticide, Alleva and Grubstake chose not to renew their  

                                                                                                                               



objection, and never asked the trial court to revisit its ruling on the motion in limine.  

                                                                                                                                    



                    Under these circumstances, we conclude that the trial court did not err in  

                                                                 



allowing the State to present evidence that Zappit 73 is a registered pesticide under state  

                                                                                                                               



and federal law.  As the trial court found, this testimony was relevant circumstantial  

                                                                                                                



evidence  that  Zappit  73  met  the  definition  of  pesticide  under  AS  46.03.900(19).  

                                                                                                              



Moreover, in order to find Alleva and Grubstake guilty of pesticide pollution, the State  

                                                                                                                              



had  to  establish  beyond  a  reasonable  doubt  that  Alleva  and  Grubstake  acted  with  

                                                                                                                     



criminal  negligence  and  without  prior  authorization  of  the  Alaska  Department  of  

                                                                                                                                  



                                                               -  7 -                                                         2687

 


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

                                                                                         16  

Environmental Conservation.                                                                    The trial court could reasonably find that evidence of                                                                                                        



state and federal regulation of Zappit 73 provided relevant context to why its use would                                                                                                                                                         



require   prior   authorization   and   whether  Alleva   and   Grubstake   acted   with   criminal  



negligence in spreading Zappit 73 on a public right of way.                                                                                                                          



                                        Accordingly, we conclude that the trial court did not abuse its discretion in                                                                                                                                         



admitting this evidence.                   



                    Conclusion  



                                        The judgment of the district court is AFFIRMED.  

                                                                                                                                                      



          16        AS 46.03.730; AS 46.03.790(a)(1).  



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