concurring.
I am writing separately to address two legal problems in this case: (1) the definition of the "commonly used form"of marijuana (the phrase used in AS 11.71.080 to define the punishable weight of live marijuana plants), and (2) whether a person who is convicted of possessing a pound or more of marijuana in their residence can also be convicted of the separate felony of maintaining a building for the keeping of controlled substances, AS 11.71.040(a)(5).
What is the "commonly used form" of mariJuana?
For purposes of criminal prosecution under AS 11.71, the legislature has defined marijuana as "the [fertile] seeds, ... leaves, buds, and flowers of the plant (genus) Cannabis, whether growing or not".1 The police seized many marijuana plants (as well as some harvested marijuana) from Maness's *1136residence. Adhering to the statutory definition of marijuana, the police harvested and dried the leaves and buds from Maness's marijuana plants. After the leaves and buds were dry, they weighed 1674 grams-approximately 3 pounds, 11 ounces. Adding in the previously harvested marijuana, the State alleged that Maness possessed nearly 4 pounds of marijuana.
When a person is prosecuted for possession of marijuana, the seriousness of their offense depends on the weight of the marijuana. But for purposes of Alaska's drug statutes, the process of weighing marijuana does not involve a straightforward process of placing the seeds, leaves, buds, and flowers on a scale and seeing how much they weigh. Instead, the legislature has enacted special rules for determining the punishable weight of marijuana.
When the marijuana is in harvested form, the punishable weight includes not only the seeds, leaves, buds, and flowers themselves but also the weight of whatever else these plant parts might be mixed with. Under AS 11.71.040(a)(8)(F), a person commits the class C felony of fourth-degree controlled substance misconduct if they possess "one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more containing [marijuana]". As this court noted in Gibson v. State, 719 P.2d 687 (Alaska App.1986), this statute is worded so that the amount of actual marijuana in a compound or mixture is irrelevant. So long as the compound or mixture contains some small amount of marijuana, the person's offense will be gauged by the total weight of the compound or mixture.2 Thus, a person who possesses two or three joints of marijuana is guilty of a class B misdemeanor,3 but if they mix this small amount of marijuana into a milkshake or a pan of brownies, they are guilty of a class C felony.4
For unharvested marijuana-that is, for live plants-the legislature has provided a different method for determining the punishable weight of the marijuana. AS 11.71.080 declares that "[flor purposes of calculating the aggregate weight of a live marijuana plant, the aggregate weight shall be the weight of the marijuana when reduced to its commonly used form." In Atkinson v. State, 869 P.2d 486, 494 (Alaska App.1994), this court ruled that any dispute as to what constitutes the "commonly used form" of marijuana is a question of fact to be resolved by the jury.
Here lies the point of contention. At his trial, Maness presented testimony that-at least in the current marijuana milieu-the buds are the only "commonly used" part of the marijuana plant; the leaves are considered "trash" and are thrown away.5 Based on this testimony, and based on the fact that almost all of Maness's marijuana was in the form of live plants, Maness asked the superi- or court to instruct the jury (1) that they should disregard the weight of the leaves harvested from his plants, and (2) that they could convict Maness of felony possession of marijuana only if the State proved that the buds from those plants weighed at least one pound.
The trial judge refused to give such an instruction. Instead, the judge instructed the jury on all three of the statutes discussed above: (a) the statutory definition of marijuana, (b) the statute defining the punishable weight of live plants as limited to the "commonly used form" of marijuana, and (c) the charging statute, AS 11.71.040(2)(8)(F), which prohibits possession of marijuana or any marijuana compound or mixture having an aggregate weight of one pound or more.
By simply instructing the jury on all three statutes without specifying the relationship *1137between them, the trial judge effectively allowed the defense and the prosecution to argue competing versions of what constituted the "commonly used form" of marijuana.
During the defense summation, Maness's attorney argued that the phrase "commonly used form" referred to the particular parts of the marijuana plant that are commonly ingested by marijuana users. Relying on the trial testimony that the buds were the only part of the plant that marijuana users cared about, the defense attorney argued that the jury could convict Maness only if they found that the buds harvested from his plants weighed one pound or more.
The prosecutor, on the other hand, reminded the jury that the statutory definition of marijuana includes both buds and leaves. The prosecutor told the jury that the phrase "commonly used form" referred, not to the particular parts of the plant that marijuana users might favor, but rather to the fact that marijuana is dried before it is used or sold. The prosecutor explained that this is why the police dried the marijuana harvested from Maness's plants before they weighed it. According to the prosecutor, the jurors could consider-and, by law, were obliged to consider-the weight of both the dried leaves and the dried buds harvested from Maness's plants when deciding whether Maness possessed one pound or more of marijuana.
Now it may be true, as this court said in Atkinson, that the jury must ultimately decide whether a particular batch of marijuana introduced into evidence by the State is (or is not) in its "commonly used form". But before the jury can decide this factual issue, they must know the meaning of this legal phrase; that is, the jurors must be apprised of the test that they are to apply when assessing whether marijuana is in its "commonly used form". The definition of "commonly used form" is a question of law. Thus, it is the trial judge's job to instruct the jurors concerning the defining criteria for recognizing marijuana in its "commonly used form". i
I acknowledge that it is not easy to discern the precise meaning of "commonly used form". There is no clear relationship between the statute defining marijuana (AS 11.71.900(14)), the statute limiting the punishable weight of live plants to the resulting marijuana in its "commonly used form" (AS 11.71.080), and the statute that defines felony possession of marijuana as possession of a compound or mixture that contains some marijuana and that has a total weight of one pound or more (AS 11.71.040(a)(@8)(F)). Moreover (as discussed below), the legislative history of this phrase sheds little light on this issue. But it was error for the trial judge to allow the parties to argue differing legal definitions of the phrase "commonly used form" and then leave it to the jury to decide what the law was.
The remaining question, of course, is to ascertain the law on this point. If Maness is correct in suggesting that the phrase "commonly used form" refers to the parts of the marijuana plant that, at the time of his. offense, were commonly ingested by marijuana users, then his conviction must be reversed-because we have no idea whether the jury used this legal test when' deciding Maness's guilt. If, on the other hand, the prosecutor was correct in arguing that "commonly used form" refers to the leaves, buds, and flowers harvested from a marijuana plant after they have been dried, then Maness's conviction should be affirmed-because the error in allowing Maness's attorney to argue an alternate version of the law (a version erroneously favorable to Maness) would be harmless.
AS 11.71.080-the statute that defines the punishable weight of a marijuana plant as the weight of the marijuana harvested from it "when reduced to its commonly used form"was enacted as part of a broad re-writing of Alaska's drug laws in 1982. See SLA 1982, ch. 45, § 2, which added chapter 71 to the criminal code. This provision began life as part of 1981 SB 190. *
In the legislative debates on SB 190, there is one portion that appears to explain the origin of AS This portion occurs in the minutes of the House Finance Committee for February 2, 1982.6 These Finance Committee minutes describe a colloquy be*1138tween Representative Sam Cotten and Chief Prosecutor Daniel Hickey of the Department of Law. The two men are discussing how the normal aggregate weight test for compounds or mixtures would apply when marijuana was seized in the form ofa live plant:
Representative Cotten ... asked if Mr. Hickey had indicated [that] he wouldn't go by the strict letter of the law [but] instead . would interpret [the law in a way] he thought ... would be more rational. Mr. Hickey agreed [that he had said this]. Representative Cotten said [that] this [approach wasn't consistent with] the bill Mr. Hickey said [that] a constrained, technical reading of the aggregate weight test is going to mean that if a plant weighs in its entirety 4 ounces and has THC content, it could conceivably support prosecution under the bill. [Note: As originally drafted, AS 11.71 did not punish possession of marijuana in an amount less than 4 ounces.] ®
Representative Cotten asked [if it was possible that] Mr. Hickey's intent wouldn't be to prosecute, but somebody else's might. Mr. Hickey agreed [that this was possible]. Representative Cotten suggested [that] the law ought to be re-written. Mr. Hickey said [that] maybe it not only ought to [be], but [could] be better written.
Representative Cotten asked if [Mr. Hickey] had any suggestions. Mr. Hickey said [that] one [possibility] was to say "4 ounces or X-[number of] plants", but then you get into the battle of how big ... the plant [can] be. There was further discussion. Mr. Hickey said [that] a more reasonable approach would be to attempt to define the thing in terms of ... a substance, the aggregate weight of which contains marijuana, and the substance [as al whole is in some kind of usable form, or can be reduced to [a] usable form that has [the specified] weight. \
The upshot of this discussion was AS 11.71.080.7
But instead of incorporating Mr. Hickey's suggested wording ("usable form"), the legislature chose "commonly used form"-thus engendering the legal issue that Maness raises.
The colloquy in the House Finance Committee does not resolve this issue. However, I conclude that Maness's interpretation of the statute must be rejected because it is ultimately illogical.
Maness interprets AS 11.71.080 to mean that when the police find marijuana plants, the punishable weight of these plants is limited to the weight of the most commonly used part of the plants-the buds. Yet if the police arrived minutes after these same marijuana plants were harvested, the punishable weight of the marijuana would be determined by weighing all of the marijuana-seeds, leaves, buds, and flowers-in the grower's possession. This disparity appears to make no sense, and Maness offers no convincing rationale to explain it.
I therefore conclude that the State's interpretation of the statute is correct: when AS 11.71.080 refers to "marijuana ... reduced to its commonly used form", the statute is speaking of marijuana as defined in AS 11.71.900(14)-i.¢., fertile seeds, leaves, buds, and flowers-after this marijuana has been "reduced to its commonly used harvested from the plant and dried.
(I acknowledge that, in Atkinson, this court suggested that marijuana in its "commonly used form" might include small amounts of things that are not defined as "marijuana" under AS 11.71.900(14)-things such as stems and other marijuana detritus.8 For purposes of resolving Maness's case, it is not necessary to decide whether that interpretation of the statute should be re-evaluated.)
As explained above, the jury in Maness's case was asked to choose between two competing interpretations of AS 11.71.080; the State's interpretation (which I conclude is correct) and Maness's interpretation (which, *1139for the reasons explained here, I conclude should be rejected). Because statutory interpretation is a question of law, it was error to ask the jury to resolve this issue. But because this error could only have favored Maness, the error was harmless.
When a person is convicted of possessing a pound or more of marijuana in their residence, can the State also convict them of the separate felony of maintaining a building for the keeping of controlled substances, AS 11.71.040(a)(5)?
Maness was convicted of violating AS 11.71.040(a)(5), Alaska's "crack house" statute. This statute declares that it is a felony to "knowingly keep[] or maintain[] any ... dwelling, building, ... or other structure or place that is used for keeping or distributing controlled substances in violation of a felony offense [defined by AS 11.71] or AS 17.80". This language is derived from § 402(a)(5) of the Uniform Controlled Substances Act (1970)9
On appeal, Maness argues that this statute does not apply to people who are guilty of simply possessing controlled substances for personal use in their homes. (Maness was charged with possession of marijuana with intent to sell, but he was acquitted of this charge. His felony marijuana conviction was based on the fact that he possessed one pound or more.)
Maness did not raise this argument in the superior court. He therefore must demonstrate that the trial judge committed plain error by failing to recognize this purported limitation on the reach of AS 11.71.040(a)(5) and then instructing the jury about it.
I have previously, expressed my concern that, under some cireamstances, Alaska's double jeopardy clause might be violated if a defendant received separate convictions for possessing drugs and for maintaining a dwelling or building to keep those same drugs. See my concurrence in Tunnel v. State, Alaska App. Memorandum Opinion No. 4465 (October 3, 2001), slip opinion at 21-283.
Several other courts have recognized the danger that a broad interpretation of their "crack house" statutes would subject homeowners to double punishment for what is essentially one act of illegally possessing drugs. To avoid this double jeopardy problem, these states have construed their "crack house" statutes to allow a separate conviction only if the homeowner is guilty of engaging in continuing illegal drug activity other than simple possession of drugs. See State v. Ceglowski, 103 Wash.App. 346, 12 P.3d 160, 163 (2000); Meeks v. State, 872 P.2d 986, 989 (Okla.Crim.App.1994); Howard v. State, 815 P.2d 679, 683 (Okla.Crim.App.1991); Barnes v. State, 255 Ga. 396, 339 S.E.2d 229, 234 (1986); Tucker v. State, 19 Md.App. 39, 308 A.2d 696, 699-700 (1973).
See also Annotation, Validity and Construction of State Statutes Criminalizing the Act of Permitting Real Property to be Used in Comnmection with Ilegal Drug Activities, 24 AL.R5th 428, § 8 (1994), which lists cases in which courts have held that "crack house" statutes require proof that the premises are used for the manufacture, sale, distribution, or use of controlled substances by someone other than the owner of the premises.
Nevertheless, the controlling Alaska precedent on this issue, Davis v. State, 766 P.2d 41, 46 (Alaska App.1988), appears to reject this position. Moreover, with regard to the decisions from other states, some of their statutes are worded somewhat differently from Alaska's, and thus these decisions are at least potentially distinguishable. (I note, however, that Washington and Georgia, like Alaska, have taken their statutes essentially verbatim from the Uniform Controlled Substances Act.)
For these reasons, I conclude that even though Maness has presented a colorable argument, he has not demonstrated plain error.
. AS 11.71.900(14).
. Gibson, 719 P.2d at 690.
. Sixth-degree controlled substance misconduct under AS 11.71.060(a)(1).
, Fourth-degree controlled substance misconduct under AS 11.71.040(a)(3)(F).
. I note that Maness's contention is supported by the record in Coffman v. State, Alaska App. Memorandum Opinion No. 4541 (March 6, 2002). During the superior court proceedings in Coff-man, a witness described an incident in which he and two accomplices broke into a trailer near Willow and stole approximately one hundred pounds of marijuana plants. According to this witness, he and his accomplices harvested the buds from the marijuana plants and threw away the leaves. See Coffman, slip opinion at page 36.
. See Tape HFC 82-4, Side 1, beginning at log no. 384.
. On February 15, 1982 (%e., two weeks after this discussion}, the House passed an amended version of SB 190-SB 190 am H (re-engrossed)that contained a newly-drafted AS 11.71.080. See Alaska State Legislature Senate Bill History & Journal Index, 1981-82, p. 0658.
. See Atkinson, 869 P.2d at 494.
. See Dawson v. State, 894 P.2d 672, 674 (Alaska App.1995); Barnes v. State, 255 Ga. 396, 339 S.E.2d 229, 231 (1986).