Alleva v. State, 123120 AKCA, A-13441

Docket NºA-13441, A-13442
Opinion JudgeHARBISON Judge.
Party NameRONALD PHILLIP ALLEVA, Appellant, v. STATE OF ALASKA, Appellee. GRUBSTAKE AUCTION CO., INC., Appellant, v. STATE OF ALASKA, Appellee.
AttorneyPaul 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.
Judge PanelBefore: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Case DateDecember 31, 2020
CourtCourt of Appeals of Alaska

RONALD PHILLIP ALLEVA, Appellant,

v.

STATE OF ALASKA, Appellee.

GRUBSTAKE AUCTION CO., INC., Appellant,

v.

STATE OF ALASKA, Appellee.

Nos. A-13441, A-13442

Court of Appeals of Alaska

December 31, 2020

Appeal from the District Court, Third Judicial District Nos. 3AN-18-08880 CR, 3AN-18-09026 CR, Anchorage, Leslie Dickson, Judge.

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.

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

OPINION

HARBISON Judge.

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 (unauthorized pesticide distribution and misuse of a pesticide2).

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, including unhoused individuals living nearby and volunteers 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 Environmental Conservation.3 Additionally, 18 AAC 90.020(5) prohibits the use of a pesticide "in a manner that is inconsistent with labeling instructions." For purposes of 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 limited to insecticides, fungicides, rodenticides, herbicides, nematocides, and biocides."4

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, nematocides, and biocides."5 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 its application."6 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 person would doubtlessly know the...

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