Opinion
Court of Appeals No. A-9532.
September 12, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-05-137 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Troy L. Linnear of one count of fourth-degree misconduct involving a controlled substance for cocaine possession, as well as two misdemeanor charges not relevant to this appeal. The focus of the State's case at trial was on a white powdery residue found on a digital scale in Linnear's pocket upon his arrest. Linnear moved for a judgment of acquittal during trial, arguing that the State failed to prove that he knew the substance was cocaine. Superior Court Judge Randy M. Olsen denied the motion. Linnear renews that claim on appeal. We affirm the conviction because sufficient evidence was presented for a reasonable juror to conclude that Linnear knew the substance was cocaine.
Factual and procedural background
Shortly before midnight on January 12, 2005, Alaska State Troopers responded to a report of domestic violence at an apartment in Fairbanks. Trooper Derek Loop, the first officer to respond, knocked on the apartment's front door. The occupants of the apartment did not answer the door, but Trooper Loop heard what he believed was the sound of someone locking the door. Trooper Loop felt the door handle and verified that it was locked. He continued to knock on the door for a few more minutes, and eventually radioed his shift supervisor, Sergeant Tim Schoenberg, seeking permission to forcibly enter. When Trooper Loop announced to the apartment's occupants that he was about to forcibly enter the apartment, they opened the door.
Trooper Loop found Troy Linnear and Desilee Walker inside the apartment. Trooper Loop explained that he had been called to the apartment because neighbors were concerned after hearing raised voices. Sergeant Schoenberg joined Trooper Loop and the two officers decided to separate Linnear and Walker to ensure that neither was being coerced to say anything. While Sergeant Schoenberg spoke to Linnear in the kitchen, police dispatch informed him that there was a court order in effect prohibiting Linnear from being in contact with Walker. Consequently, Schoenberg notified Linnear that he would be arresting him.
Sergeant Schoenberg handcuffed Linnear and led him to a patrol car. A brief struggle ensued between Schoenberg and Linnear. Before placing Linnear inside the car, Sergeant Schoenberg conducted a pat-down search of Linnear. Sergeant Schoenberg felt a hard object in the left-front pocket of the sweatpants Linnear was wearing. After removing the object and concluding that it was a folding digital scale, the officer returned it to Linnear's pocket. Linnear complained that he had dropped $250 in cash on the way to the car. Sergeant Schoenberg searched the surrounding area but did not locate any money.
Sergeant Schoenberg took Linnear to the Fairbanks Correctional Center, where he conducted a more comprehensive search. In addition to the scale, the pants pockets contained $141 in cash, a wallet holding Linnear's identification, and two unused small plastic bags imprinted with an 8-ball logo. Sergeant Schoenberg also noticed a white powder residue and green leafy substance on the scale. He conducted a field-test on these two substances; the white powder tested positive for cocaine and the green leafy substance tested positive for marijuana.
Linnear was subsequently indicted for one count of misconduct involving a controlled substance in the fourth degree for possession of cocaine. Additionally, he was charged by information with one count each of misconduct involving a controlled substance in the sixth degree (marijuana possession), resisting arrest, and violating a condition of release.
AS 11.71.040(a)(3)(A).
AS 11.71.060(a)(1).
AS 11.56.700(a)(1).
AS 11.56.757(b)(2).
Superior Court Judge Randy M. Olsen presided over Linnear's two-day jury trial in April 2005. Linnear moved for a judgment of acquittal at the close of the State's case. Judge Olsen denied the motion. The jury acquitted Linnear of the resisting arrest charge, but otherwise found Linnear guilty of all charges. Linnear was sentenced to 4 years imprisonment with 2 years suspended on the felony cocaine charge. He received a concurrent 60 days of imprisonment for the marijuana charge, and a consecutive 60 days of imprisonment on the violating conditions of release charge. This appeal followed.
Discussion
Linnear contends that Judge Olsen erred in denying his motion for judgment of acquittal. A motion for judgment of acquittal should be granted where the evidence is insufficient to support a conviction. Linnear was charged under AS 11.71.040 (a)(3)(A), which states that a person "commits the crime of misconduct involving a controlled substance in the fourth degree if the person possesses any amount of a schedule IA or IIA controlled substance." The State proved that Linnear was in possession of the scale, and that the powder on the scale was cocaine residue. Cocaine is a schedule IIA controlled substance. The State was also required to prove "knowing" possession of cocaine — that is, that Linnear was aware that the substance on the scale was cocaine. "A defendant's knowledge of the narcotic character of a substance can be shown by inferences that can be reasonably drawn from facts in evidence."
AS 11.71.150(c).
Davis v. State, 501 P.2d 1026, 1028 (Alaska 1972). See also AS 11.81.900(a)(2) (defining "knowing").
Moreau v. State, 588 P.2d 275, 285 (Alaska 1978).
On appeal, we consider all facts, and any reasonable inferences drawn from them, in the light most favorable to upholding the jury's verdict. If a reasonable juror could have concluded beyond a reasonable doubt that Linnear knew the substance was cocaine, we will affirm the conviction. The evidence against Linnear
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994); Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990).
Sergeant Schoenberg, a veteran narcotics officer with extensive knowledge of the packaging and sale of controlled substances, testified that he found the scale in the pocket of the pants Linnear was wearing. He found Linnear's wallet in another pocket of the pants. Inside the wallet was Linnear's identification and two small bags. Sergeant Schoenberg referred to the bags as "dime bags" and testified that "dime bags" were commonly used to traffic narcotics. The bags were emblazoned with a series of "8-balls" from the game of pool. According to Sergeant Schoenberg, an "8-ball" is a reference to a specific weight of drugs.
Sergeant Schoenberg also found $141 in cash, mostly in $20 bills, in the pants pocket. Sergeant Schoenberg recalled that Linnear, while being placed in the patrol car, complained that he had dropped an additional $250. Sergeant Schoenberg felt that if Linnear was carrying $391 in cash, mostly in $20 bills, this would support his belief that Linnear was selling drugs.
The digital scale, which measured approximately three inches by five inches had a folding cover that protected the actual scale and digital display. After folding back the cover of the scale, Sergeant Schoenberg recalled that:
On top of the scale, around the lid and over the . . . portion of the scale itself, there was a white powdery substance, almost looking like dust, . . . but there were small white particles. There was a green leafy substance, which it was apparent to me that it was . . . marijuana. [This residue was] basically in the edges and along the rim of the scale itself.
Sergeant Schoenberg testified that he conducted a field-test of the white powder and, as a result of that test, sent the scale to the crime lab for further testing.
The white powder residue was not visible when the scale was displayed to the jury. Sergeant Schoenberg explained that when he first seized the scale, the white powder was visible to the naked eye, but that his field testing altered the appearance of the scale. The field test consisted of running a swab over the surface of the scale. This swabbing resulted in the white powder turning a reddish color. He pointed out to the jury where portions of the white powder remained on the scale and reiterated that the powder was clearly visible when he seized the scale. Sergeant Schoenberg concluded, based on his extensive experience investigating drug distribution, that this type of scale would only be used for drug trafficking, and not personal use. Sergeant Schoenberg testified that he did not find any evidence of drug use paraphernalia on Linnear or in the apartment.
Stephen Palmer, a criminalist with the State of Alaska Crime Laboratory, testified as an expert in the identification of controlled substances. He testified that he tested the visible reddish residue on the scale and that it tested positive for cocaine.
According to Trooper Loop, the scale found on Linnear "looked like there was a layer of dust on it, but it wasn't dust, it was a different colored material on it. I observed [a] green leafy substance on it and an off-white colored powder or grime, just a light coating over the whole scale area and the face of the scale."
The defense asserted two relevant points. First, Desilee Walker claimed ownership of the scale. Second, she asserted that the pants which Linnear wore were her pants.
Why we conclude that sufficient evidence supports Linnear's conviction
We find that, based on reasonable inferences from the evidence, a reasonable juror could have concluded that Linnear knew the substance was cocaine.
Both of the officers testified that the white powder was visible to the naked eye and that the scale was found in the pocket of the pants Linnear was wearing. The pants pockets also contained Linnear's wallet and identification — sufficient evidence for the jury to conclude that, regardless of who owned the pants, Linnear had placed these items in the pockets of the garment. The size of the scale — which measured three inches by five inches — confirms that Linnear should have been aware that it was in his pocket.
Critically, Linnear was arrested with several common instruments of drug distribution: the scale, the dime bags, and cash. This evidence, placed into context by the State's expert testimony, would allow a reasonable juror to conclude that Linnear was aware the substance was cocaine. The State presented testimony that scales of this type were commonly used in the sale of drugs. The State also presented testimony that "dime bags" are typically used to traffic illegal drugs. The fact that the bags were unused would allow a rational juror to conclude that Linnear was using the scale to distribute drugs. Further, the jury was told that the "8-ball" logo was typical of drug transactions. Finally, the State offered evidence that the amount of cash that Linnear possessed — including the $250 that Linnear claimed to have dropped — was consistent with drug sales. Viewing the facts in the light most favorable to the State, and drawing all reasonable inferences in favor of the State, this evidence was sufficient to support a conviction for misconduct involving a controlled substance in the fourth degree.
See Kurzendoerfer v. State, Alaska App. Memorandum Opinion No. 4935 at 7 (Oct. 20, 2004), 2004 WL 2349407 at *4 (holding that possession of trace amounts of methamphetamine and cocaine, along with syringe needles, bindle, and a spoon, presents sufficient evidence to find "knowing" possession).
See Murray v. State, 12 P.3d 784, 793-94 (Alaska App. 2000) (stating that a "gram scale" is re levant circum stantial evidence of narc otics distributio n). See also Sim pson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994) (holding that circumstantial evidence is permissible to prove awareness and intent by defendant).
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) (holding that evidence that defendant was in possession of a large amount of cash was relevant to establish that defendant was engaged in drug trafficking).
Conclusion
We AFFIRM Linnear's conviction for misconduct involving a controlled substance in the fourth degree because we find that a reasonable juror could have found beyond a reasonable doubt that Linnear knew the white powder was cocaine.