Wahrer v. State, A-5148

• Decision Date: 18 August 1995
• Docket Number: No. A-5148,A-5148
• Parties: Sheila WAHRER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 442

901 P.2d 442

Sheila WAHRER, Appellant, v. STATE of Alaska, Appellee.

No. A-5148.

Court of Appeals of Alaska.

Aug. 18, 1995.

Sharon Barr, Assistant Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

MANNHEIMER, Judge.

Sheila Wahrer appeals her conviction for fourth-degree misconduct involving a controlled substance, AS 11.71.040(a)(5). She contends that the trial judge misinstructed the jury concerning an element of this offense. We find that the challenged jury instruction was proper, and we therefore affirm Wahrer's conviction.

The statute Wahrer was convicted of violating, AS 11.71.040(a)(5), forbids a person to

knowingly keep[ ] or maintain[ ] any ... building, vehicle, boat, aircraft, or other structure or place which is used for keeping or distributing controlled substances in violation of a felony offense under [AS 11.71] or AS 17.30[.]

At Wahrer's trial, the State asserted that Wahrer had maintained an apartment in the Mountain View area of Anchorage that was being used as a "crack house"--a place where cocaine was prepared and sold. Viewed in the light most favorable to the State, the evidence at trial showed that Wahrer, using a false name, rented the apartment and then allowed various individuals to use the premises as the site of a cocaine business.

Wahrer defended by contending that she rented the apartment so that a man named "Ray" could live there. Wahrer testified that she barely knew "Ray", but she was interested in getting to know him better. She asserted that she had rented the apartment for Ray out of friendship, and that she had no idea that the apartment was being used for drug sales. Wahrer explained that she, rather than Ray, had rented the apartment because she believed that a landlord would be more likely to rent to her (a white woman) than to Ray (a black man). She said that she had used false identification because she was nineteen years old and she believed that she could not legally rent an apartment unless she was twenty-one.

At the close of trial, when the court was formulating the jury instructions, both the parties and the court struggled over the definition of "keep or maintain" a building. Superior Court Judge Rene J. Gonzalez ultimately decided to give the following instruction (over Wahrer's objection):

A person keeps or maintains a building, dwelling, or other structure or place if that person [either] conducts business operations or knowingly allows others to conduct business operations in a building [or] place which that person controls or had the right to control either through ownership or lease. Said business may be either legal or illegal.

Wahrer objected that the court's definition of "maintaining" suggested that this element could be satisfied by proof of a defendant's passive and purely legal relationship to the premises--that Wahrer could be found guilty simply because she signed the lease for the apartment. Wahrer contended that the statute required that the defendant have a more active relationship to the premises--one involving the exercise of control, not mere legal title. Wahrer's attorney proposed the following instruction:

To keep or maintain a dwelling, building, or other structure ... means to take care of, support, conduct, or manage a structure or place for some particular purpose.

Judge Gonzalez rejected this instruction, but he informed Wahrer's attorney that the defense would be entitled to argue to the jury that, even though Wahrer signed the lease, Wahrer nevertheless had no right to control the activities taking place at the apartment.

On appeal, Wahrer renews her argument that the challenged jury instruction was improper. She argues that, under the court's instruction, the jury might have convicted Wahrer even if they believed that her only connection to the apartment was that she signed the lease and then relinquished control over the premises to Ray and his associates. The short answer to Wahrer's argument is that, once she secured the lease, even if she later chose to relinquish control of the apartment to Ray and the others, she still might properly be convicted.

In Dawson v. State, 894 P.2d 672 (Alaska App.1995), this court recently analyzed the meaning of the statute in question, AS 11.71.040(a)(5). We concluded that the statute requires proof that the defendant "knew" (as defined in AS 11.81.900(a)(2)) that the premises were being used for continuing illegal drug activity. Dawson, 894 P.2d at 677. We also concluded that the statutory phrase "keeps or maintains" refers to a defendant's possessing "control or hav[ing] authority to control...