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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
A SHLEY T. OSKOLKOFF, )
) Court of Appeals No. A-10611
Appellant, ) Trial Court No. 3AN-09-03064 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2360 - May 11, 2012
)
Appeal from the District Court, Third Judicial District,
Anchorage, Gregory Motyka, Judge.
Appearances: Jane B. Martinez, Contract Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Mary A. Gilson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
The State charged Ashley T. Oskolkoff with the offense of "habitual minor
consuming" because, while under the age of twenty-one, she consumed alcoholic
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beverages and she had several prior convictions for minor consuming. 1 In the district
court, Oskolkoff argued that the existence of prior convictions was an element of the
offense, and that therefore this question was for the jury, with the State having to prove
the prior convictions beyond a reasonable doubt. District Court Judge Gregory Motyka
rejected this argument, concluding that a defendant's prior convictions constituted a
sentencing factor to be decided by the court. Accordingly, Judge Motyka did not submit
the question of Oskolkoff's criminal history to the jury.
The jury convicted Oskolkoff. She now appeals, renewing her argument
that a defendant's prior convictions are an element of the offense, and arguing that Judge
Motyka erred when he took this issue from the jury. For the reasons explained here, we
agree with Oskolkoff that when a defendant is charged with either "repeat minor
consuming" or "habitual minor consuming," the existence of the defendant's prior
convictions is an element of the offense. Oskolkoff is therefore entitled to a new trial.
In addition, our review of the district court proceedings in Oskolkoff's case
convinces us that we need to clarify exactly what criminal history the State must prove
in order to support a conviction for "habitual minor consuming." In the trial court
proceedings in this case, both Judge Motyka and the lawyers for the parties assumed that
the question was whether Oskolkoff had two or more prior convictions for minor
consuming. This is incorrect.
Although the habitual minor consuming statute, AS 04.16.050(d), speaks
of proof that the defendant "has been previously convicted twice," this phrase does not
refer to previous convictions for minor consuming. Rather, it refers to previous
convictions (or delinquency adjudications) for other crimes: drug offenses, driving under
1 Former AS 04.16.050(d) (2008).
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the influence, breath-test refusal, and the various crimes that relate to minors driving after
consuming any amount of alcohol.2
Description of AS 04.16.050, the statute that forbids minors from
possessing or consuming alcoholic beverages
Alaska Statute AS 04.16.050 declares that, with certain exceptions, a person
under the age of twenty-one is prohibited from possessing or consuming alcoholic
beverages. The current scheme of escalating penalties for first offenders and repeat
offenders was enacted in 2001.3 The statute has been amended since then, but it retains
the same basic penalty structure adopted in 2001.4 We note that, because Oskolkoff's
current offense was committed in 2009, the 2008 version of the statute is the one that
applies to her.
The minor consuming statute creates three levels or degrees of the offense.
Under subsection (b) of the statute, a first offender's crime is simply called "minor
consuming," and these offenders can receive one of two penalties: either a suspended
imposition of sentence under subsection (b)(1) of the statute, or a small fine and probation
under subsection (b)(2) of the statute.
The next level of the offense, "repeat minor consuming," is defined in
subsection (c) of the statute. To successfully prosecute a person for "repeat minor
consuming" under the 2008 version of the statute, the State had to prove that the person
possessed or consumed alcoholic beverages as a minor, and that the person either "was
placed on probation under [subsection] (b)(1)" - i.e., the person received a suspended
2 See AS 04.16.050(l)(3).
3 2001 SLA, ch. 65, §§ 1, 2.
4 See 2008 SLA, ch. 75, §§ 1-5; 2010 SLA ch. 86, § 8; 2010 SLA ch. 88, §§ 3-5.
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imposition of sentence for a prior minor consuming conviction - or the person "[had]
been previously convicted once."
This last phrase is problematic. At first blush, it appears to refer to a person's
prior conviction for minor consuming. But this is incorrect. A person with a prior
conviction for minor consuming has not been "previously convicted" under this statute.
Instead, the legislature used the phrase "previously convicted" in a non-standard way.
The meaning of "previously convicted" (for purposes of the minor consuming statute)
is found in subsection (l)(3) of the statute. Under this definition,
"previously convicted" means a conviction or an adjudication
as a delinquent for a violation of AS 11.71, AS 28.35.030,
28.35.032, 28.35.280-28.35.290, or a law or ordinance in
another jurisdiction with substantially similar elements.
Translated into English, this subsection refers to prior convictions (or delinquency
adjudications) for any of the controlled substance offenses defined in AS 11.71, or for
driving under the influence, breath-test refusal, or the various crimes relating to minors
who drive after consuming any amount of alcohol.
So, to successfully prosecute a person for "repeat minor consuming" under
subsection (c) of the 2008 version of the statute, the State had to prove that the defendant
had one of two criminal histories. One option was to prove that the defendant was
previously convicted of basic "minor consuming" under subsection (b) of the statute, and
that the defendant received a suspended imposition of sentence under subsection (b)(1)
of the statute, as opposed to the normal probation described in subsection (b)(2). The
second option was to prove that the defendant was "previously convicted once" - but
as we have just explained, this does not mean "previously convicted of minor consuming."
Rather, it means previously convicted of a drug offense, or driving under the influence,
or breath-test refusal, or one of the crimes relating to minors driving after consuming
alcohol.
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(We note that, under this 2008 version of the statute, a person who was
convicted of basic "minor consuming" and who received normal probation under
subsection (b)(2) of the statute was apparently not subject to increased penalties for a
subsequent offense. This loophole has been eliminated in the current version of AS 04.-
16.050(c).)
The third and highest level of the offense, "habitual minor consuming," is
defined in subsection (d) of the statute. To successfully prosecute a person for habitual
minor consuming under the 2008 version of the statute, the State had to prove that the
person possessed or consumed alcoholic beverages as a minor, and that the person either
"was placed on probation under [subsection] (c)" - i.e., the person was previously
convicted of "repeat minor consuming" - or the person "[had] been previously convicted
twice." Again, this language does not refer to a person's prior convictions for minor
consuming, but rather to a person's prior convictions for the offenses listed in subsection
(l)(3) of the statute.
The proceedings in Oskolkoff's case
Oskolkoff was charged with habitual minor consuming under subsection
(d) of the statute. Accordingly, the State was required to prove that Oskolkoff consumed
or possessed an alcoholic beverage and that (1) she had previously been convicted of
"repeat minor consuming" and placed on probation under subsection (c) of the statute,
or (2) she had at least two prior convictions for any of the other offenses listed in
subsection (l)(3) of the statute.
Oskolkoff had four prior convictions for minor consuming, but none of these
convictions was for repeat minor consuming under subsection (c) of the statute.
Oskolkoff's first two convictions (January 2006 and February 2007) were for the basic
offense of "minor consuming" under subsection (b) of the statute. Oskolkoff's next two
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convictions (August 2007) were for "habitual minor consuming" under subsection (d)
of the statute.
(It appears that these latter two convictions may have been prosecuted under
the mistaken assumption that the phrase "previously convicted twice" referred to a
person's prior convictions for minor consuming. However, the validity of those
convictions is not before us.)
At the close of the State's case, Oskolkoff moved for dismissal of the habitual
minor consuming charge, arguing that her criminal history was an element of the crime,
and that the State had failed to present any evidence that she had the necessary prior
convictions to elevate her offense to "habitual minor consuming." The trial judge ruled
that Oskolkoff's criminal history was not an element of the crime, but rather a factor that
the court was required to consider at sentencing. The judge therefore denied Oskolkoff's
motion.
As we explained earlier, the trial judge and the parties appear to have
mistakenly believed that "previously convicted" referred to a defendant's prior convictions
for minor consuming. Thus, the State was later allowed to argue that Oskolkoff should
be convicted of habitual minor consuming because she had two or more prior convictions
for minor consuming. The State made no effort to prove that Oskolkoff had ever been
convicted of "repeat minor consuming" under subsection (c) of the statute, or that
Oskolkoff had ever been convicted of any of the other offenses listed in subsection (l)(3)
of the statute.
Why we conclude Oskolkoff is entitled to a new trial
Although Oskolkoff characterizes her mid-trial motion as a motion for a
judgment of acquittal (see Alaska Criminal Rule 29(a)), her underlying contention is that
when a defendant is charged with "habitual minor consuming," the defendant's predicate
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criminal history is not a sentencing factor, but rather an element of the offense that must
be decided by the jury, and proved beyond a reasonable doubt.
Thus, the dispute in the district court was not about a supposed failure of
proof, but rather about the proper definition of the offense. Under these circumstances,
if Oskolkoff is right, and a defendant's prior convictions constitute an element of the
offense, she is entitled to a new trial, but not an acquittal.5
We turn, then, to the question of whether a defendant's predicate criminal
history is an element of habitual minor consuming under AS 04.16.050(d).
In a series of cases involving analogous statutes - that is, statutes which
specify an increased level of offense for repeat offenders6 - this court has developed a
rule of construction that governs such statutes: this type of statute "will be interpreted
to create ... separate substantive offense[s], and the defendant's prior convictions will be
construed as an element of [the greater] offense, unless the legislature clearly indicates
a contrary intention."7
As we explained earlier, the current format of AS 04.16.050 was enacted
in 2001, several years after this court decided Tallent. Interpretation of this statute is
therefore governed by the rule we set forth in Tallent.
We have examined the legislative history of AS 04.16.050. That history
does not contain a clear indication that the legislature intended the repeat-offender
provisions to be merely penalty provisions. Accordingly, we construe the statute in
accordance with the Tallent rule, and we hold that when a defendant is prosecuted for
5 See West v. State, 223 P.3d 634, 639-40 (Alaska App. 2010); Collins v. State , 977
P.2d 741, 748, 751 (Alaska App. 1999).
6 See Tallent v. State, 951 P.2d 857 (Alaska App. 1997); Ross v. State , 950 P.2d 587
(Alaska App. 1997); Morgan v. State , 661 P.2d 1102 (Alaska App. 1983).
7 Tallent, 951 P.2d at 861.
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"repeat minor consuming" under subsection (c) of the statute or "habitual minor
consuming" under subsection (d) of the statute, a defendant's predicate criminal history
is an element of the offense.
In Oskolkoff's case, the required criminal history was either (1) a prior
conviction for "repeat minor consuming" under subsection (c) of the statute, or (2) two
prior convictions for the other offenses listed in subsection (l)(3) of the statute. Because
Oskolkoff's jury was never asked to decide whether the State had proved this predicate
criminal history, Oskolkoff is entitled to a new trial.
Conclusion
The judgment of the district court is REVERSED.
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