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No. 1129 Court of Appeals No. A-3431
Court of Appeals of Alaska
April 26 1991
Richard J. Ray Assistant District Counsel Harry L. Davis District Counsel Fairbanks and Douglas B. Baily Counsel General Juneau for appellant.
J. John Franich Assistant Public Advocate Fairbanks and Brant McGee Public Advocate Anchorage for appellee.
Bryner C.J. Coats J. and Andrews Superior Court Court. Mannheimer J. not participating.
The Hon. Justice Coats

Sitting by assignment made pursuant to article IV section 16 of the Alaska Constitution.

On November 8 1989 the police served a search warrant on a house in Fairbanks which was rented by Earl J. Thronsen's brother. The police described the residence as a "crack house" a place where people regularly go to congregate and use cocaine. The warrant authorized the police to look for cocaine, cocaine paraphernalia and the ingredients for making the "crack" form of cocaine.

Thronsen was in the house when the search warrant was executed. He was lying face down on a couch in the living room; his hands were beneath him. It appeared to the police officer conducting the search that Thronsen was hiding something underneath his hands. When the police searched the couch they found a syringe underneath a cushion where Thronsen had been lying.

Thronsen's hands had been at the place where the cushions were separated. The syringe was the type used for intravenous drug use; that type of syringe usually leaves track marks on a person's arms. Thronsen had track marks on his arms. Later tests indicated that the syringe contained a trace residue of cocaine.

A sample of Thronsen's blood and urine was taken on November 9, 1989 at 6:39 p.m. and was sent to Anchorage for testing. The urine sample screened positive for the presence of cocaine and/or its metabolites. Expert testing established that Thronsen must have consumed cocaine within the previous 72 hours from the time the urine specimen was collected.

A grand jury indicted on two counts of misconduct involving a controlled substance in the fourth degree. AS 11.71.040(a)(3)(A). In Count I the grand jury charged Thronsen with knowingly and unlawfully possessing a syringe which contained cocaine. In Count II the grand jury charged that Thronsen "unlawfully possessed in his body cocaine." Thronsen was tried by a jury on these charges.

Thronsen testified at trial. He stated that he had on previous occasions taken cocaine with his brother at his brother's house. Although he denied possessing the syringe found in the couch he stated that in the past he had shot up cocaine in his brother's house with the type of syringe which was discovered under the couch. He said he had not consumed cocaine at his brother's house on November 8. However he had smoked a little cocaine at his own house "way earlier" than the time that the search warrant was executed on his brother's house.

At the end of the state's presentation of its case Thronsen moved for a judgment of acquittal on Count II which charged Thronsen with possession of cocaine "in his body." Thronsen argued that he could not be convicted of possession of cocaine in his body because he no longer had control over the cocaine once he ingested or injected it. Superior Court Court Richard D. Savell denied this motion without prejudice.

The jury found Thronsen not guilty on Count I possession of cocaine in the syringe and guilty of Count II possession of cocaine "in his body." Following trial Court Savell reconsidered Thronsen's motion for judgment of acquittal on Count II and then set aside and vacated the judgment of conviction. He reasoned that although the state could use the presence of cocaine in Thronsen's blood or urine as circumstantial evidence that Thronsen had earlier possessed or used cocaine the indictment did not charge Thronsen with prior possession of cocaine.

The indictment only charged Thronsen with possession of cocaine "in his body." Court Savell relied on State v. Downs 31 Or.App. 1183 572 P.2d 1328 1330 (Or. App. 1977) and State v. Flinchpaugh 232 Kan. 831 659 P.2d 208 211 (Kan. 1983). Court Savell stated "these cases hold that control is an essential element of possession and that because the host body cannot exercise control or dominion over a substance after it is ingested the mere presence in the body cannot support a criminal conviction for possession." Court Savell went on to say:

Plaintiff seeks to escape the effect of the cited cases by arguing that here "Mr. Thronsen clearly injected the cocaine into his own system." This argument misses the mark. There was no evidence that defendant ingested the cocaine that was in his system. Nor may plaintiff rely upon defendant's presence in a "crack house" or the presence of a cocaine soiled syringe nearby.

Defendant was acquitted of knowing possession of the syringe. And there was no evidence of when where or how defendant possessed the cocaine that ended up in his system. Most importantly defendant was not charged with possession of cocaine at the time and place of ingestion. Rather he was only charged with possessing the drug in his body. This additional element i.e. possession in the body is fatal to the state's case. (Emphasis in original.)

Court Savell entered a judgment of acquittal on Count II. The state appeals from this order. We affirm.

We may not reverse a genuine verdict of acquittal on appeal without violating the constitutional provisions of the United States and the Alaska Constitutions which prohibit putting a defendant twice in jeopardy. See United States v. Martin Linen Supply Company 430 U.S. 564 97 S. Ct. 1349 51 L. Ed. 2d 642 (1977); State v. Kott 636 P.2d 622 623 (Alaska App. 1981) aff'd 678 P.2d 386 (Alaska 1984).

In addition AS 22.07.020(d)(2) states that "the state has no right of appeal in criminal cases except to test the sufficiency of the indictment or information or to appeal a sentence on the ground that it is too lenient." Since Court Savell's order purported to be a judgment of acquittal we ordered the parties to brief whether this court had jurisdiction. The parties submitted supplemental briefs.

Where "the ruling of the Court whatever its label actually represents a resolution correct or not of some or all of the factual elements of the offense charged " the ruling constitutes a judgment of acquittal. Martin Linen Supply Company 430 U.S. at 571. However courts are not bound by the fact that a Court refers to his ruling as a "judgment of acquittal." In some cases the Court's ruling can be classified as a motion dismissing the indictment.

See Selman v. State 406 P.2d 181 186 (Alaska 1965). In this case we might be able to properly classify Court Savell's order as essentially dismissing the indictment against Thronsen. On the other hand Court Savell's order does appear to weigh some of the evidence which the state presented against Thronsen. This part of his order would support a conclusion that it was a genuine judgment of acquittal.

We find it unnecessary to resolve this issue. We conclude that Court Savell was correct in concluding that on its face the indictment charged Thronsen with possession of cocaine "in his body." All of the cases we have reviewed support the conclusion that a defendant cannot be convicted for possession of cocaine in his or her body.

These cases conclude that a person who has cocaine in his or her body has no control over the cocaine and therefore does not have possession. Flinchpaugh 659 P.2d at 208; Downes 572 P.2d at 1328. The state has cited us to cases from Georgia which hold that a defendant may be convicted of possession of cocaine based upon positive blood and urine tests for cocaine. Green v. State 194 Ga. App. 343 390 S.E.2d 285 (Ga. App. 1990) aff'd 260 Ga. 625 398 S.E.2d 360 (Ga. 1990).

However these cases only stand for the proposition that a defendant may be convicted of possession of cocaine based upon this evidence. They do not appear to stand for the proposition that a defendant may be convicted of possession of cocaine "in his body." We accordingly affirm Court Savell's order dismissing Count II of the indictment.