Atkinson v. State
In Atkinson v. State, 869 P.2d 486 (Alaska App. 1994) the Court addressed a situation where the defendant was charged with two counts:
(1) possession of marijuana with intent to deliver, and (2) possession of marijuana.
Because the State did not differentiate the marijuana at issue in the two counts, this court concluded that "the charge in each count was evidently based on the entirety of the marijuana seized."
The Court then held that double jeopardy barred the State from convicting Atkinson of two separate counts based on "a single act of possession involving the same marijuana."
The Court held that, although it was possible that the jury could conceivably have convicted Atkinson on separate theories of guilt, "neither the jury instructions nor the state's argument at trial limited the jury to convicting based on the [alternate] theory."
The Court concluded that, since the record was ambiguous, "the ambiguity [had to be] resolved in Atkinson's favor."
The Court discussed the law that applies when the jury must decide the aggregate weight of live marijuana plants. The Court pointed out that in determining the weight of marijuana plants, the marijuana did not have "to be reduced to its purest, unadulterated statutory form; aggregate weight must instead be based on the 'commonly used form.'"
In Atkinson, we concluded that the court did not err in admitting an expert's testimony considering the aggregate weight of marijuana, even though the marijuana included stems and twigs that were not part of the statutory definition of marijuana.
The Court concluded that the weight of the marijuana was a factual question for the jury.