MANNHEIMER, Judge.
Jesse A. Brewer appeals his conviction for sixth-degree controlled substance misconduct (possession of four ounces or more of marijuana in one's home).
AS 11.71.060(a)(1), as limited in Noy v. State, 83 P.3d 538, 544-45 (Alaska App. 2003).
Brewer first contends that the evidence against him — nineteen marijuana plants — was procured during an unlawful search of his house. When this issue was litigated in the district court, the court found that Brewer consented to a state trooper's entry of his house and to the trooper's inspection of the room where Brewer was growing the marijuana. In this appeal, Brewer argues that the district court reached the wrong conclusion, but his argument is premised on a view of the evidence most favorable to himself. We must view the evidence in the light most favorable to upholding the district court's findings. Viewing the evidence in that manner, it supports the district court's ruling.
See State v. Wagar, 79 P.3d 644, 650 (Alaska 2003) (when an appellate court reviews a trial court's ruling on a motion to suppress evidence, the appellate court must view the record in the light most favorable to upholding the trial court's ruling).
Brewer next contends that the district court improperly refused to hold a pretrial hearing at which Brewer proposed to prove that the State's evidence was insufficient to support the charge.
The state troopers found nineteen marijuana plants growing in Brewer's house. Under AS 11.71.080, when a person is charged with possessing marijuana in the form of live plants, the weight of the marijuana is not the total weight of the plants, but rather the weight of the marijuana after it has been "reduced to its commonly used form". To comply with this statute, the troopers in Brewer's case dried the marijuana plants and then harvested the leaves and buds. This process yielded approximately 5.6 ounces of marijuana.
Before trial, Brewer asked the district court to hold a hearing to determine whether this purported 5.6 ounces of marijuana actually contained 4 ounces or more of marijuana in its "commonly used form". Brewer did not dispute that the "commonly used form" of marijuana included both buds and leaves, but he contended that there might be enough other material in the mix (stems, twigs, stalks, etc.) to reduce the total weight of "commonly used" marijuana to less than 4 ounces.
The district court refused to hold the proposed hearing because the court ruled that if the weight of the marijuana was in dispute, this was an issue of fact for the jury. This ruling was correct.
(The court invited Brewer to renew his motion at the close of the State's case, presumably in the form of a motion for a judgement of acquittal, but Brewer did not take up this invitation.)
In addition, Brewer now contends that the "commonly used form" of marijuana consists solely of buds, and not leaves. Brewer did not raise this contention until his trial, but at trial he testified that "nobody smokes [the] leaf . . .; it'd choke you to death".
Brewer asserts that he asked the trial judge to require the State to segregate the buds from the rest of the marijuana in the bag, and to separately weigh the buds. But this is incorrect. Brewer never asked for this procedure. Instead, he asked permission either to cross-examine the trooper or to testify himself concerning the proportion of buds in the bag.
This request was honored. The trial judge allowed Brewer to pull buds out of the evidence bag and show them to the jury, so that the jury might see how small a proportion of the bag these buds represented in comparison to the leaves. Brewer also picked through the marijuana in the State's evidence bag and testified that, based on his examination, he estimated that the bag contained no more than a half-ounce of buds.
Based on Brewer's testimony, his attorney argued to the jury that the buds were the only "commonly used" portion of the marijuana plant — and that, therefore, the State had failed to establish that Brewer possessed 4 or more ounces of marijuana in its "commonly used form". The State, for its part, argued that the leaves were also a commonly used form of marijuana. The jury decided this issue against Brewer.
This Court has never resolved the issue of whether the "commonly used form" of marijuana is a question of fact for the jury, to be decided based on evidence about contemporary patterns of marijuana use, or is instead a question of law to be resolved by the court using methods of statutory interpretation.
See Maness v. State, 49 P.3d 1128, 1136-37 (Alaska App. 2002) (Mannheimer, J., concurring).
But Brewer has not suggested that the "commonly used form" of marijuana is a question of law — and, in any event, he did not preserve that argument in the district court. If, on the other hand, the "commonly used form" of marijuana is a question of fact to be decided by the jury, there was no error — for Brewer had a full chance to litigate this question.
For these reasons, the judgement of the district court is AFFIRMED.