Collins v. State , 1999 Alas. App. LEXIS 17 ( 1999 )

OPINION

STEWART, Judge.

Artie R. Collins was tried by a jury and convicted of two counts of fourth-degree misconduct involving a controlled substance,¹ one count of second-degree misconduct involving weapons,² and one count of third-degree misconduct involving weapons.³ On appeal, he maintains that the superior court should have granted his motions for judgment of acquittal on each count. He also argues that evidence was erroneously admitted in two areas causing reversible error. For the reasons discussed below, we uphold Collins’s convictions for possession of cocaine and possession of an altered firearm and reverse his convictions for maintaining a crack house and possession of a firearm during the commission of a felony drug offense.

Facts and proceedings

On January 3, 1997, the Anchorage Police Department received an anonymous tip that drug sales were occurring at apartment # 10 of the Eagle’s Nest Hotel. Police set up surveillance shortly thereafter and observed five or six people enter that apartment within a ten-minute period and leave' after brief visits. The police obtained a search warrant for apartment # 10.

After 11:00 p.m., the police returned to apartment # 10 to execute the search warrant. David Washington opened the door and the officers entered. The apartment consisted of two bedrooms, a living room, a kitchen and a bathroom. Collins was found in the southwest bedroom. Kimberly Packer and Marilyn Medina were also in the apartment. Packer appeared to be either under the influence of cocaine or in cocaine withdrawal.

During the search pursuant to the warrant, the police seized two handguns from under the same side of the mattress in the southwest bedroom, one at the foot of the bed, the other at the head. The serial number on one handgun had been filed off. The altered handgun, an Acutec .380 caliber, was loaded with two live rounds. The other handgun, a 9-millimeter Inter Arms Fires-tar, was loaded with three live rounds. A box of .380 caliber bullets with two rounds removed was also found in the southwest bedroom in a green bag that also contained an eyeglass ease and cards that had Collins’s pager number and his alias, Stoney. Collins wore eyeglasses. When interviewed, Collins admitted that the guns were his and that he had bought them on the street for $50. No usable fingerprints were found on either gun. Evidence was presented at trial that the usual purpose of removing a serial number from a gun is to render that gun untraceable.

In the closet in the southwest bedroom, the police seized a black day pack containing a crack pipe, scales, scissors, two plastic baggies, a piece of plastic wrap, and a bag. The scales were small, precise, electronic and commonly used for weighing cocaine. The scales had traces of cocaine on them. From that room, they also seized papers, a day planner, two cellular phones and two pagers. The day planner contained a paper that the police described as a drug-sale record. The planner was identified with the name “Stoney Mac,” a name to which Collins answered, and the name of “Odessa Watson (Collins),” who was listed as “mother.” The planner contained an entry to propose marriage to “Kimberly” on Christmas. Packer’s fingerprints (but not Collins’s) were found on the planner. Records from the Personal Page showed that a pager belonging to Collins had received more than 1,000 calls in one month. Police seized $197 from Collins.

The police also seized various items, including a piece of a coat hanger, a straw, a knife, and a M & M container with a white residue from the living room area. The north bedroom yielded a scale inside a garbage bag. Police also found a copper pipe with a piece of Chore Boy, a test tube with another piece of Chore Boy, and two small containers in the north bedroom. A broken “crack pipe” was found in the kitchen. Collins told police that he resided in apartment #10.

At trial, Collins, Medina, Packer, and Washington did not testify. Collins objected to the admission of two purported “drug ledgers,” one found in the day planner, and the other found elsewhere in the southwest bedroom. He also objected to Judge Souter’s decision to permit certain police officers to testify as experts. Judge Souter overruled those objections. At the end of the case, Collins moved for a judgment of acquittal on every count. Judge Souter denied his motions.

Discussion

Testimony of'police officers as experts

On appeal, Collins maintains that evidence from two police officers was erroneously admitted over his objection.

Officer Pam Nelson was asked why a serial number would be removed from a firearm. Collins objected that the answer called for speculation. After that objection was overruled, Nelson testified that a serial number might be removed from a firearm to render it untraceable. Collins renews his argument that the testimony was speculative. We conclude that Judge Souter did not abuse his discretion when he permitted that testimony over Collins’s objection.⁴ Officer Nelson’s testimony based on her experience and training with handguns was not speculative.

Collins now maintains that Officer Nelson offered expert testimony without proper qualification by the court to testify as an expert witness. But Collins did not make that objection to Officer Nelson’s testimony in the trial court. Therefore, he did not preserve that issue for appeal.

Collins also objected to certain questions put to Detective Bruce Bryant on the basis that his answers would lack foundation, be speculative, irrelevant, or would call for hearsay. Collins also objected to the State’s question posed to Detective Bryant regarding what consistencies he noted between this case and other “crack houses” he had seen in the past.

DEFENSE COUNSEL: I’m going to object as to discovery.

THE COURT: Object as to discovery? DEFENSE COUNSEL: Yes, sir.

THE COURT: I didn’t hear where that called for any sort of discovery. The objection is overruled.

Collins did not raise the issue again, nor did he ask for any form of relief.

On appeal, Collins argues that Detective Bryant’s testimony about the similarity of other crack houses to the Eagle’s Nest apartment was expert testimony that was presented without notice or discovery under Criminal Rule 16. He asserts that Alaska Rule of Criminal Procedure 16(b)(1)(B) required discovery of this testimony.⁵ But it is not clear to us that Criminal Rule 16(b)(1)(B) applies to police officers, like Bryant, who testify to their on-the-scene observations and conclusions based on their training and experience. Even so, Collins did not articulate to the trial court how the purported discovery violation prejudiced his defense.⁶ Nor did he ask for any specific relief other than objecting to the question put to Bryant. Collins argues that Judge Souter implicitly denied all relief, including a request for a continuance, when he overruled the objection as to discovery. We disagree.

If the defense claims a mid-trial discovery violation, the defendant must present the trial court with a plausible claim of prejudice and request appropriate relief. If a continuance is not requested for a purported discovery violation, this ordinarily waives any claim that a continuance should have been granted.⁷ Collins did not request any specific relief to address the purported discovery violation. We conclude that this issue was waived.

Admission of day planner and drug ledgers

Collins next argues that certain documents admitted at trial, a day planner and the two sheets of paper described as drug ledgers, were erroneously admitted over his hearsay objection. He claims the State offered the exhibits for the truth of the matter asserted. The two sheets were described by the court as “a list of numbers and names, and from that the jury can reasonably draw an inference that it’s a list of customers[.]” Collins also claims that the papers were admitted without sufficient foundation, that is, that there was inadequate proof that Collins authored the documents. He also argues that the documents were not admissible under the business record exception to hearsay.⁸ Judge Souter admitted the documents not for the truth of the matter asserted, but as relevant circumstantial evidence of drug transactions occurring on the premises. In other words, the documents were circumstantial evidence that controlled substances were distributed in the Eagle’s Nest apartment.

Collins relies on United States v. Arteaga,⁹ as support for his argument. In Aiteaga, the trial court admitted “to-send-money” and “to-receive-money” forms from Western Union in a money-laundering scheme where proceeds of cocaine sales in Alaska were wired to California. The district court first admitted the forms under Federal Rule of Evidence 803 as business records and later stated that the forms were admissible under the catch-all hearsay exception because the forms had circumstantial guarantees of trustworthiness. In the face of objections from the defendants in the case, the district court ultimately ruled that the forms were admitted not for the truth of the matters on the forms. The Arteaga court recognized that that ruling eliminated the hearsay objections and recognized that the forms at issue in that case that were found in Arteaga’s home were circumstantial evidence of the charged criminal conduct.¹⁰

Although Collins argues that the documents in question were admitted for the truth of the matter asserted, that was not Judge Souter’s announced ruling. The documents in question here were admitted as circumstantial evidence of cocaine transactions on the premises.

Many courts have allowed the introduction of “drug ledgers” not for the truth of the entries on the ledgers, but as circumstantial evidence that drug-related activities were occurring on the premises where the records were found. In United States v. Wilson, the court ruled that certain records that were found on the premises where the prosecution alleged that drug trafficking was occurring were admissible as circumstantial evidence that drug trafficking was occurring on the premises.¹¹ “The evidence, however, did tend to show that the apartment was being used for drug trafficking.”¹² Also, in United States v. Jaramillo-Suarez,¹³ the court, following Wilson, approved the introduction of “pay/owe” sheets as circumstantial evidence of drug trafficking in the apartment where they were found:

The pay/owe sheet in the present case was admitted for the specific and limited purpose of showing the character and use of the [] apartment.... Because the pay/ owe sheet’s probative value for the limited purpose for which it was admitted was independent of the truth of its contents, the rule against hearsay was not implicated[ J¹⁴

Similarly, in United States v. Enriquez-Estrada,¹⁵ the court approved the introduction of a drug ledger to show the nature of the use of the residence where the ledger was found.¹⁶ And in People v. Harvey,¹⁷ the court upheld the non-hearsay use of drug ledgers found in homes connected to the defendants as circumstantial evidence of cocaine sales and a cocaine conspiracy.¹⁸

We conclude that it was not an abuse of discretion for Judge Souter to admit the contested documents as circumstantial evidence of drug activity because the issue of trafficking in controlled substances is a material issue to count II.

Collins raises another issue relating to the documents in question. He argues that during the prosecutor’s final argument, the prosecutor used information in the drug ledgers for the truth of the matter asserted. Because the prosecutor purportedly used that information for the truth of the matter asserted when it was not admitted for the truth of its contents, Collins argues that his conviction should be reversed. He relies on United States v. Lai.¹⁹

In Lai, the trial court admitted the drug records as circumstantial evidence of Lai’s alleged criminal drug activity. But in Lai, the government conceded that the documents were used to prove particular drug transactions that were elements of the conspiracy count that was charged. The Lai court concluded that the records were hearsay and proper foundations for the records were required.²⁰ Because the district court had not addressed the foundation for admission of the records as hearsay, the court did not reverse Lai’s conviction, but remanded the case to the district court for a hearing on whether there was a proper basis for the admission of those records.²¹

Collins has not claimed nor has the State conceded that the use of the documents in question for the truth asserted in the documents was necessary to establish an element of one of the charged counts. And Collins never objected to any portion of the proseeutor’s argument. Because he did not object to the claimed misuse of the evidence during argument, he has not preserved that issue for appeal. Finally, Collins has not claimed that the prosecutor’s final argument created plain error.

Sufficiency of the evidence

Collins claims that Judge Souter erred when he denied his motion for judgment of acquittal on each count. When a defendant attacks a conviction for insufficiency of the evidence, we must view the evidence presented, and reasonable inferences from the evidence, in the light most favorable to upholding the jury’s verdict.²² Viewing the evidence from this perspective, we must decide whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.²³

Possession of cocaine

Collins stipulated that there was cocaine residue on various items in the apartment, including on the scales, on various crack pipes, and on other paraphernalia found in his residence. The police described the various items of paraphernalia found around the apartment that were typically used for marketing cocaine and crack cocaine. In addition, the prosecution presented evidence that Collins had a pager through Personal Page on which he had received more than a thousand pages in a month. The prosecution showed the jury the cards that had the pager number issued to Collins along with his alias, Stoney Mac. The two loaded handguns (that Collins admitted were his) were found under the mattress of the bed in the room where Collins was found when the police entered. The prosecution presented testimony that it was consistent with the retail distribution of cocaine to have readily available firearms.

While most of the evidence that was presented relating to this count was circumstantial, the jury was entitled to make reasonable inferences from that evidence and conclude that Collins possessed cocaine. While it was also possible for the jury to infer that other occupants of the apartment were the ones who possessed the cocaine, and not Collins, the jury was permitted to reject those conclusions and agree that the prosecution had proven the count beyond a reasonable doubt.

Keeping or maintaining a “crack house” and possession of a firearm during commission of a felony drug offense

We conclude that Collins’s conviction on these counts must be reversed for the reasons expressed in Judge Mannheimer’s concurring opinion.

Possession of an altered firearm

Finally, Collins maintains that there was insufficient evidence to show that he knew that the handgun with the serial number removed had been altered with intent to render it untraeeable. As we noted above, Collins admitted that the two handguns were his. He also said that he purchased both handguns “on the street” for $50. The altered handgun was admitted into evidence and the jury was allowed to examine where the serial number had been obliterated. The prosecution also presented evidence from two police officers that the removal of a serial number from a weapon exhibited an intent to render that firearm untraeeable.

Collins maintains that the State was required to present evidence that he possessed the handgun with the specific intent that the weapon be untraeeable. We disagree. Alaska Statute 11.61.200(a)(6) provides that a person commits third-degree weapons misconduct when the person:

possesses a firearm on which the manufacturer’s serial number has been removed, covered, altered, or destroyed, knowing that the serial number has been removed, covered, altered, or destroyed with the intent of rendering the firearm untraceable[J

Under this statute, the State must prove, first, that someone had removed the serial number with the intent to render the firearm untraeeable, and, second, that Collins acted “knowingly”²⁴ with respect to this circumstance.

From our review of the record, we conclude that reasonable jurors could agree that the prosecution had proven this count beyond a reasonable doubt. Collins purchased both handguns, including the altered handgun, on the street from a person he did not know for $50. The jury was entitled to infer that he loaded the altered handgun and hid it under the mattress in the bedroom. The jury also had the testimony that a purpose for the obliteration or removal of a serial number on a firearm is to render the firearm untraceable and could infer from the circumstances of Collins’s purchase and possession of the handgun that he knew the serial number had been removed from the firearm in order to render it untraeeable.

Conclusion

For the reasons explained here, we AFFIRM Collins’s convictions for possession of cocaine and possession of an altered firearm. We REVERSE his conviction for maintaining a crack house and REMAND for entry of a judgment of acquittal on that count. We REVERSE Collins’s conviction of possession of a firearm during the commission of a felony drug offense and REMAND for a new trial on that count.

1 . AS tl.71.040(a)(3)(A) and (a)(5).

2 . AS 11.61.195.

3 . AS 11.61.200(a)(6).

4 . See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).

5 . Criminal Rule 16(b)(1)(B) provides:

(B) Expert Witnesses. Unless a different date is set by the court, as soon as known and no later than 45 days prior to trial, the prosecutor shall inform the defendant of the names and addresses of any expert witnesses performing work in connection with the case or whom the prosecutor is likely to call at trial. The prosecutor shall also make available for inspection and copying any reports or written statements of these experts. With respect to each expert whom the prosecution is likely to call at trial, the prosecutor shall also furnish to the defendant a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion. Failure to provide timely disclosure under this rule shall entitle the defendant to a continuance. If the court finds that a continuance is not an adequate remedy under the circumstances of the case, the court may impose other sanctions, including prohibiting the prosecutor from calling the expert at trial or declaring a mistrial.

6 . See Bostic v. State, 805 P.2d 344, 348-49 (Alaska 1991); Jurco v. State, 825 P.2d 909, 916-17 (Alaska App.1992).

7 . See Scharver v. State, 561 P.2d 300, 302 (Alaska 1977).

8 . Alaska Rule of Evidence 803(6).

9 . 117 F.3d 388 (9th Cir.), cert. denied, — U.S. —, 118 S.Ct. 455, 139 L.Ed.2d 390 (1997).

10 . See id. at 397-98.

11 . See Wilson, 532 F.2d 641, 645-46 (8th Cir.1976).

12 . Id.

13 . 950 F.2d 1378 (9th Cir. 1991).

14 . Id. at 1383.

15 . 999 F.2d 1355 (9th Cir.1993).

16 . See id. at 1360.

17 . 233 Cal.App.3d 1206, 285 Cal.Rptr. 158 (1991).

18 . See id. at 167-68.

19 . 944 F.2d 1434 (9th Cir.1991).

20 . See id. at 1445.

21 . See id.

22 . See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994).

23 . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (citations omitted).

24 . See AS 11.81.900(a)(2).