McGraw v. State
| Decision Date | 19 August 2015 |
| Docket Number | No. 6226,Court of Appeals No. A-11070,6226 |
| Court | Alaska Court of Appeals |
| Parties | JONATHAN W. McGRAW JR., Appellant, v. STATE OF ALASKA, Appellee. |
NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINIONAppeal from the Superior Court, First Judicial District, Sitka, David V. George and Philip M. Pallenberg, Judges.
Appearances: David A. Graham, Graham Law Firm, Sitka, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.*
Jonathan W. McGraw Jr. was convicted of possessing one ounce or more of marijuana for purposes of distribution, and of maintaining a building for use in a controlled substance felony offense. He challenges his convictions on more than a dozengrounds. For the reasons explained in this opinion, we conclude that none of McGraw's arguments have merit. However, given the facts of McGraw's case, he is entitled to a merger of his two convictions under our recent decision in Rofkar v. State, 305 P.3d 356 (Alaska App. 2013).
Underlying facts
On November 11, 2009, the Sitka police applied for a warrant to search the property at 1204 Beardsley Way, where McGraw lived. This was a fenced compound comprising four structures. One of these buildings ("Building 1") was a fifth-wheel trailer; this trailer was connected to an associated out-building ("Building 2") by an elevated walkway. Located behind the trailer and the out-building were two Conex storage containers ("Building 3" and "Building 4").
The Sitka police executed the search warrant on November 30th. When the police arrived at the property, a man named Vincent Peters was the only person there. Peters told the officers that he was taking care of McGraw's dogs while McGraw was out of town.
In the fifth-wheel trailer (Building 1), the police found a plastic bag containing 4.3 grams of marijuana sitting on top of a stool placed on a La-Z-Boy chair. The officers also found $100 in cash and a scale.
The associated out-building (Building 2) contained McGraw's living area, with a couch, a dresser, some book shelves, and a computer. On this dresser, the police found a tray with scissors (apparently, the type of scissors used for trimming plants) and some mason jars. In the back of this living area, there was a curtain that served as a partition to a second room. This second room was a hydroponic grow-room; it was outfitted with grow lights, a thermostat, and a charcoal filtration ventilation system.
This grow-room in Building 2 contained 15 marijuana plants, as well as 61.9 grams of marijuana (roughly 2.18 ounces) divided into quarter-ounce bags that were sitting in an open safe. The safe also contained $400 in cash. Nearby was a wastebasket containing stems that had been ripped from processed marijuana plants. An adjoining closet contained partially processed marijuana that was hanging to dry.
The officers also found numerous pieces of evidence in the trailer and the out-building that linked McGraw to the residence: photographs of McGraw, a photo album with McGraw's name written on the cover, McGraw's fishing permits, a collection of "High Times" magazines addressed to McGraw, miscellaneous mail addressed to McGraw, and prescription medications bearing McGraw's name.
Building 3 (one of the two Conex containers) was divided into three sections. The front section contained buckets filled with the stumps and roots of marijuana plants and the remains of recently harvested marijuana. The middle and back rooms contained numerous marijuana plants in various stages of growth. Some of the plants were being grown in soil, while other were being grown hydroponically. Building 4 (the other Conex container) had a similar layout to Building 3, and it also contained numerous marijuana plants.
All told, the police seized 102 marijuana plants from the out-building and the two Conex containers (Buildings 2, 3, and 4).
A grand jury indicted McGraw on four counts of fourth-degree controlled substance misconduct. Count I charged McGraw with knowingly manufacturing, delivering, or possessing one ounce or more of marijuana with the intent to distribute.1 Count II charged McGraw with knowingly possessing one pound or moreof marijuana.2 Count III charged McGraw with maintaining a structure for use in a felony drug offense.3 And Count IV charged McGraw with knowingly possessing 25 or more marijuana plants.4
Count II of the indictment was dismissed for reasons unrelated to this appeal. The superior court dismissed Count IV of the indictment in the middle of McGraw's trial, after the State declined to grant immunity to two witnesses who purportedly would have testified that the marijuana found in Buildings 3 and 4 belonged to them, and not to McGraw.
The jury convicted McGraw of the two remaining counts: Counts I (possession with intent to distribute) and III (maintaining a building).
The search warrant application
After McGraw was indicted, he asked the superior court to suppress the evidence obtained under the search warrant. McGraw asserted that the search warrant application contained several significant misstatements and omissions, and that the warrant was therefore invalid. In order to evaluate McGraw's claims regarding these alleged misstatements and omissions, we must describe the contents of the search warrant application.
Sitka Police Detective Kyle Ferguson applied for the search warrant. In his application, Ferguson relied on information obtained by another officer, Dayton Long, as well as information supplied by three confidential informants.
According to the warrant application, Officer Long visited McGraw's residence on November 9, 2009, in response to a complaint about a barking dog. Long reported that, while he was on the property, he could smell the odor of marijuana coming from the out-building (Building 2). Long was approximately seven to ten yards from the out-building when he smelled the marijuana.
Officer Long also noticed a power cord running from the fifth-wheeler (i.e., Building 1) to the out-building.
Detective Ferguson had extensive drug investigation experience. Based on this experience, and based on Long's description of the strength of the marijuana smell, Ferguson concluded that McGraw possessed an amount of marijuana that exceeded the typical amount used for personal use.
We now turn to the information that Detective Ferguson received from the confidential informants.
Informant #1 told Ferguson that he had visited the residence at 1204 Beardsley Way (where McGraw lived) and that he had purchased small quantities of marijuana from McGraw's housemate (i.e., Vincent Peters) around a dozen times.
Informant #1 told Ferguson about an occasion in December 2008 when he helped McGraw and Peters clip the buds from dried marijuana plants. Informant #1 did not see where the plants were being grown, but he explained that McGraw left the room and then returned with the dried plants. On this same day in December 2008,Informant #1 observed McGraw manufacturing hashish from the stems and leaves of marijuana plants.
The next informant, Informant #2, told Ferguson that McGraw was growing marijuana in the Conex storage units on the Beardsley Way property (Buildings 3 and 4). According to Informant #2, each Conex contained 30 to 90 plants. Informant #2 stated that these units were ventilated through the floor, possibly through a charcoal ventilation system, and that some of the marijuana plants were watered by hand, while other plants were grown hydroponically.
Ferguson told the court that Informant #2 had acquired this information about one year previously, both from personally viewing the growing sites and through conversations with McGraw.
The third informant, Informant #3, visited the Beardsley Way property twice in July 2009 (i.e., about four months before the search warrant application). Informant #3 told Ferguson that he went there because he was interested in obtaining a job with McGraw. Inside the trailer (i.e., Building 1), Informant #3 saw drug paraphernalia and a bag of marijuana.
During Informant #3's visits to the residence, McGraw gave him tours of his marijuana growing operation, and Informant #3 saw numerous plants in the out-building (Building 2) and in one of the Conex storage units. McGraw told Informant #3 that he normally was able to harvest around 8 ounces of marijuana per plant, and that he was making tens of thousands of dollars from his operation, selling the marijuana in Juneau and on an island in Southeast Alaska.
In addition to the information provided by Officer Long and the three confidential informants, Detective Ferguson also told the court about the electricity usage at the Beardsley Way property.
The local utility company was providing electricity to the property under two separate accounts; one account was in the name of Southeast Earthmovers, and the other was in the name of Joshua McGraw (Jonathan McGraw's brother).
The Southeast Earthmovers account was drawing an average of 83 kilowatt hours per day, and the Joshua McGraw account was drawing approximately 56 kilowatt hours per day, for a total of nearly 140 kilowatt hours per day. According to Detective Ferguson, the average Sitka family residence with electrical heat uses approximately 35 kilowatt hours of electricity per day. Thus, the property was using almost four times the residential average.
In the superior court, McGraw argued that the...
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