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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES BUSTER BOWEN,
Court of Appeals No. A-13756
Petitioner, Trial Court No. 3KN-20-00771 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2752 - June 30, 2023
Petition for Review from the Superior Court, Third Judicial
District, Kenai, Jennifer K. Wells, Judge.
Appearances: David A. Case (petition) and George W.P.
Madeira Jr. (briefing and argument), Assistant Public
Defenders, and Samantha Cherot, Public Defender,
Anchorage, for the Petitioner. Diane L. Wendlandt, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Treg R. Taylor, Attorney General, Juneau, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge HARBISON.
Alaska Statute 11.71.050(a)(4) criminalizes the simple possession of most
controlled substances. This offense is classified as fifth-degree misconduct involving a
controlled substance, a class A misdemeanor. But the same conduct is classified under
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AS 11.71.040(a)(12) as fourth-degree misconduct involving a controlled substance -
a class C felony - if, within the preceding ten years, the defendant was convicted
"under AS 11.71.050(a)(4), or [an offense] with elements similar to
AS 11.71.050(a)(4)."
In 2020, James Buster Bowen was indicted under this repeat offender
provision for one count of possession of heroin and one count of possession of
1
methamphetamine. The State alleged that these offenses were class C felonies because,
in 2013, Bowen was convicted of attempted fourth-degree misconduct involving a
controlled substance (i.e., the attempted manufacture or delivery of, or attempted
2
possession with intent to manufacture or deliver, a controlled substance). According to
the State, this offense has elements that are similar to the elements of fifth-degree
misconduct involving a controlled substance under AS 11.71.050(a)(4) (i.e., simple
possession of a controlled substance), thus elevating Bowen's offenses to class C
felonies.
Bowen moved to dismiss the counts in the indictment charging him with
fourth-degree misconduct involving a controlled substance under the repeat offender
provision. Relevant to this appeal, he argued that the elements of simple drug possession
under AS 11.71.050(a)(4) and the elements of his prior offense are not similar, as
required by AS 11.71.040(a)(12). The superior court denied this motion.
After unsuccessfully moving for reconsideration of the court's order,
Bowen filed a petition for review with this Court. We granted the petition and ordered
1 AS 11.71.040(a)(12). Bowen was also indicted for one count of second-degree
misconduct involving a controlled substance (AS 11.71.021(a)(1)) and one count of third-
degree misconduct involving a controlled substance (AS 11.71.030(a)(9)), but those
charges are not relevant to the issues raised in this case.
2 AS 11.71.040(a)(1) & AS 11.31.100.
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3
full briefing. For the reasons explained in this opinion, we conclude that attempted
fourth-degree misconduct involving a controlled substance (Bowen's prior offense)
cannot serve as an enhancing conviction under AS 11.71.040(a)(12).
Why we conclude that the State cannot rely on attempted fourth-degree
drug misconduct to satisfy the repeat offender provision of
AS 11.71.040(a)(12)
Under AS 11.71.040(a)(12), a person is guilty of a class C felony if they
possess any amount of certain controlled substances and, within the preceding ten years,
have been convicted "of a crime under AS 11.71.050(a)(4), or a law or ordinance in this
or another jurisdiction with elements similar to AS 11.71.050(a)(4)." The sole question
presented by this petition is whether a conviction for attempted manufacturing,
delivering, or possessing with intent to manufacture or deliver a controlled substance
satisfies the repeat offender provision of AS 11.71.040(a)(12).
4
This question is one of statutory interpretation that we review de novo.
"When we interpret a statute, we 'consider its language, its purpose, and its legislative
3 Before the briefing was complete, Bowen entered into an agreement with the State
that resolved his case, and the State accordingly asked us to dismiss the petition for review
as moot. We denied this motion, finding that Bowen's petition satisfied the public interest
exception to the mootness doctrine. See State v. Roberts, 999 P.2d 151, 153 (Alaska App.
2000) (public interest exception to mootness doctrine requires the court to consider:
(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine,
if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether
the issues presented are so important to the public interest as to justify resolving a moot
issue).
4 Baer v. State, 499 P.3d 1037, 1040 (Alaska App. 2021) (citing Brown v. State , 404
P.3d 191, 193 (Alaska App. 2017)).
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----------------------- Page 4-----------------------
history, in an attempt to give effect to the legislature's intent, with due regard for the
5
meaning the statutory language conveys to others.'"
We first address whether attempted fourth-degree misconduct involving a
controlled substances has "elements similar" to fifth-degree misconduct involving a
controlled substance, the specifically enumerated offense.
The statutory phrase "elements similar" (or variations of that phrase) is a
6
term of art that has acquired a particular meaning through a series of judicial decisions.
The Alaska Supreme Court has explained that whether statutes have "similar" elements
depends on whether their elements are "categorically alike with no significant
7
differences." Under this categorical approach, it is the elements that must be similar,
8
not the specific facts underlying the defendant's prior conviction. But this does not
9
mean that the elements must be "identical." Instead, elemental similarity is determined
by referring to the "great majority of cases," and not by examining differences that
"apply only to a narrow spectrum of unusual cases."10
Applying this analysis to the statutes at issue in this case leads to the
conclusion that the completed offense of fourth-degree misconduct involving a
controlled substance (i.e., manufacturing or delivering or possessing with intent to
5 Cleveland v. State, 241 P.3d 504, 506 (Alaska App. 2010) (quoting Alyeska Pipeline
Serv. Co. v. State, Dep 't of Envtl. Conservation, 145 P.3d 561, 566 (Alaska 2006)).
6 See, e.g., State, Dep't of Pub. Safety v. Doe, 425 P.3d 115, 119-20 (Alaska 2018);
Phillips v. State, 330 P.3d 941, 942 (Alaska App. 2014).
7 Doe, 425 P.3d at 121.
8 Id. at 119-20.
9 State v. Delagarza, 8 P.3d 362, 365-68 (Alaska App. 2000); Borja v. State, 886 P.2d
1311, 1314 (Alaska App. 1994); Doe, 425 P.3d at 120-21.
10 Phillips, 330 P.3d at 944 (quoting State v. Simpson, 53 P.3d 165, 170 (Alaska App.
2002)).
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----------------------- Page 5-----------------------
manufacture or deliver) has elements that are "similar" to the elements of simple drug
possession under AS 11.71.050(a)(4). This is because it is virtually impossible for a
person to commit the greater offense - manufacturing, delivering, or possessing with
intent to manufacture or deliver - without also committing the lesser offense of simple
possession. Both parties acknowledge, in fact, that simple drug possession is usually a
lesser included offense of not only fourth-degree drug misconduct but also of many
other felony drug offenses.
Building on this analysis, the State argues that we must reach a similar
conclusion when comparing the elements of attempted fourth-degree drug misconduct
with the elements of simple drug possession. Indeed, the State asserts that all attempted
drug offenses must be deemed to have "elements similar" to their target crimes for
purposes of the repeat offender provision set out in AS 11.71.040(a)(12).
But the elements of an attempt ordinarily do not overlap with the elements
of the target crime. Although a crime of attempt implicates the underlying substantive
statute, and an attempt cannot be charged without reference to the underlying crime, it
is not necessary for the State to directly prove any of the elements of the target crime in
order to convict a defendant of an attempt. Instead, to prove an attempt, the State must
establish (1) that the defendant intended to commit the target crime and (2) that the
defendant took a substantial step toward the commission of the target crime.11
We accordingly conclude that, under the categorical approach to
determining elemental similarity, attempted drug misconduct crimes do not have
elements similar to their target crimes. And in particular, comparing the elements of
attempted fourth-degree controlled substances misconduct to fifth-degree controlled
substances misconduct leads to the conclusion that the two crimes are not elementally
similar.
11 AS 11.31.100(a); Braham v. State, 571 P.2d 631, 637 (Alaska 1977).
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----------------------- Page 6-----------------------
Next, we examine the question of statutory interpretation and legislative
intent - that is, did the legislature intend the statutory reference to fifth-degree
misconduct involving a controlled substance (simple possession) to include the related
attempt offense? If the answer to this question is "yes," then Bowen's prior conviction
for attempted fourth-degree misconduct involving a controlled substance would also
qualify as a predicate offense because it would have elements "similar" to attempted
fifth-degree misconduct involving a controlled substance. (In other words, because
attempted fourth- and fifth-degree controlled substance misconduct are both attempt
crimes, to prove either offense the State must establish that the defendant intended to
commit the target crime and took a substantial step toward commission of that crime.12)
We begin with the plain language of the statute.
Alaska Statute 11.71.040(a)(12) sets forth the completed crime of simple possession
under AS 11.71.050(a)(4), and those other crimes that have "similar" elements, as
predicate offenses, and does not expressly include attempts. Under the principle of
expressio unius est exclusio alterius, where certain things are designated in a statute, all
omissions should be understood as exclusions.13 Indeed, in other Alaska felony
enhancement statutes that are based on repeat offender provisions, the legislature
expressly included attempts as predicate offenses.14 Thus, the legislature's omission of
12 See AS 11.31.100(a).
13 State v. Fyfe, 370 P.3d 1092, 1099 (Alaska 2016); State v. Fogg, 995 P.2d 675, 676
(Alaska App. 2000) (quoting Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066
(Alaska 1991)).
14 See, e.g., AS 11.41.260(a)(6) (first-degree stalking statute applies to defendants
"previously convicted of a crime, or an attempt or solicitation to commit a crime" under
the listed statutory provisions (emphasis added)); AS 12.63.100(1), (2), and (7) (defining
"aggravated sex offense," "child kidnapping," and "sex offense," respectively, to include
"an attempt, solicitation, or conspiracy to commit" the listed offenses); AS 12.55.185(10)
(defining "most serious felony" to include "an attempt, or conspiracy to commit, or
criminal solicitation under AS 11.31.110 of, an unclassified felony prescribed under
AS 11.41"); AS 12.55.185(16) (defining "sexual felony" to include "felony attempt" of
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----------------------- Page 7-----------------------
any reference to attempted offenses in AS 11.71.040(a)(12) strongly indicates that it
did not intend a prior conviction for an attempted drug offense to enhance simple drug
possession to a felony.
This conclusion finds support in other jurisdictions. For example,
California appellate courts have routinely held that "attempt" is a crime that is sharply
distinct from the completed offense, and unless attempts are expressly included in a
statute, they will not be considered as a predicate offense for purposes of sentence
enhancement.15 Similarly, the Supreme Court of Pennsylvania has concluded that
attempted burglary is not a qualifying offense for purposes of a statute which prohibits
an individual from possessing a firearm if they have been previously convicted of
certain offenses, including burglary.16 The court explained that the statute is
"unambiguous" because "while burglary is on the [statute's] list of enumerated
offenses, attempt is plainly not."17 Likewise, the Minnesota Supreme Court has held
listed crimes); AS 11.41.110(a)(5)(C) (defining second-degree murder to include "an
attempt, a solicitation, or a conspiracy to commit a crime listed").
15 See, e.g., People v. Reed , 129 Cal.App.4th 1281, 1283, 29 Cal.Rptr.3d 215, 216
(Cal. App. 2005) (finding a statute that added a separate three-year jail term for prior felony
conviction for violation of, or conspiracy to violate, one of several enumerated crimes did
not include attempted commissions of those crimes); People v. White, 188 Cal.App.3d
1128, 1134, 233 Cal.Rptr. 772, 776 (Cal. App. 1987) (finding a statute that triggered a life
sentence for a "habitual offender" with two or more prior separate prison terms for certain
violent crimes against a person, including robbery, did not cover an attempted robbery "for
attempted robbery is not the same crime as robbery"); People v. Ibarra, 134 Cal.App.3d
413, 425, 184 Cal.Rptr. 639, 647 (Cal. App. 1982) (deciding a sentencing enhancement for
enumerated violent completed felonies did not include attempted murder).
16 Commonwealth v. Clegg, 27 A.3d 1266, 1266 (Pa. 2011).
17 Id. at 1270.
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that a defendant's conviction solely for an attempt is not a violation of a statute defining
the completed offense.18
But under Alaska's sliding scale approach, our analysis does not stop at
the plain language of the statute; we must also consider the legislative history behind
the recidivist provision in AS 11.71.040(a)(12).19 In some cases, the legislative history
of a statute will make clear that the legislature did intend the enumerated completed
crime to also include the related attempt.20
For example, in Mack v. State , we examined AS 12.55.085, the statute
authorizing a sentencing court to grant a suspended imposition of sentence (SIS).21 This
statute precludes the granting of an SIS for certain enumerated, completed offenses,
including sexual abuse of a minor. Mack was convicted of attempted sexual abuse of a
minor, and he argued that the district court had erred in concluding that AS 12.55.085
barred the granting of a SIS for this attempt offense. To answer this question, we
examined the legislative history of the SIS statute, and we concluded that the legislative
history "clearly evinces the legislature's intent to include all forms of sexual offenses
18 State v. Noggle, 881 N.W.2d 545, 549 (Minn. 2016).
19 See Ives v. State , ___ P.3d ___, Op. No. 2742, 2023 WL 2721359, at *3 (Alaska
App. Mar. 31, 2023) ("When interpreting a statute, Alaska's courts employ a 'sliding scale'
analysis under which a court considers the legislature's intent as well as the language of
the statute itself." (citations omitted)).
20 See, e.g., Brookins v. State, 600 P.2d 12, 17 (Alaska 1979) (concluding that former
firearm enhancement statute, which expressly applied only to robbery, also applied to
attempted robbery); Dandova v. State , 72 P.3d 325, 330-32 (Alaska App. 2003) (looking
to legislative purpose of statutory heat of passion defense to determine whether the statute,
which expressly applied the defense only to murder, also applied to attempted murder);
Bourdon v. State, 28 P.3d 319, 321 (Alaska App. 2001) (looking to the legislative history
of the bail statute to determine that provision denying bail to defendants convicted of
various specified sexual offenses also precluded bail for defendants convicted of attempts
to commit those crimes).
21 Mack v. State , 900 P.2d 1202, 1203 (Alaska App. 1995).
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within the restriction against the granting of a suspended imposition of sentence,"
including attempted sexual offenses.22 Mack was therefore barred from receiving a SIS.
In this case, the legislative history does not produce such a clear result.
Alaska Statute 11.71.040(a)(12) was enacted in 2019 along with other drug offense
sentencing and classification reforms. These reforms were initiated by the governor's
office as part of its effort to repeal the 2016 changes enacted by Senate Bill 91.23 The
governor's original proposal would have classified all simple drug possession offenses
as class C felonies.24 However, the legislature largely rejected this proposal - it
continued to classify a person's first simple possession offense as a misdemeanor, but
made the offense punishable by up to 1 year in jail.25 The legislature also enacted
AS 11.71.040(a)(12), which elevates simple drug possession to a class C felony if the
defendant has been convicted of a qualifying prior offense.26
During the committee hearings on this legislation, there was no discussion
about whether attempted fifth-degree drug misconduct would qualify as a predicate
offense for purposes of the repeat offender provision of AS 11.71.040(a)(12). The
discussions instead focused on the legislature's goals of promoting treatment for drug
22 Id. at 1204.
23 See Governor's Transmittal Letter for House Bill 49, 2019 House Journal 167-70
(Feb. 20, 2019).
24 Audio of House Finance Comm., House Bill 49, testimony of John Skidmore,
Director, Criminal Division, Dep't of Law, at 1:00:20 - 1:00:47 p.m. (May 4, 2019).
25 FSSLA 2019, ch. 4, §§ 53, 75, 138. Under the 2016 legislation, simple drug
possession was a class A misdemeanor but was not punishable with any active jail time.
See SLA 2016, ch. 36, §§ 47, 93.
26 FSSLA 2019, ch. 4, §§ 51-52.
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users and also protecting Alaskan communities by expanding the tools law enforcement
could use to combat the drug crisis.27
During the discussions, a number of legislators expressed concern about
the negative impacts of imposing either jail time or a felony conviction for simple drug
possession.28 But several other legislators questioned the choice to retain simple drug
possession as a misdemeanor, rather than classifying it as a felony.29 The legislature
ultimately adopted a two-tiered approach: a first conviction for simple possession would
be classified as a misdemeanor (AS 11.71.050(a)(4)) while a subsequent conviction
would be a class C felony (AS 11.71.040(a)(12)).
The State argues that it is unlikely that the legislature would enact a statute
increasing jail sentences for simple possession, designed to incentivize treatment for
drug users, but not include the same sentence enhancements for defendants who were
previously convicted of attempting a greater drug offense. But it also appears unlikely
that the legislature intended for a person to be charged with a felony after being
27 See, e.g., Audio of House Finance Comm., House Bill 49, testimony of John
Skidmore, Director, Criminal Division, Dep't of Law, at 2:32:50 - 2:38:09 p.m. (Apr. 29,
2019); Audio of House Finance Comm., House Bill 49, comments of Rep. Colleen
Sullivan-Leonard at 1:15:58 - 1:17:05 p.m. and Rep. Jennifer Johnston at 1:41:45 -
1:55:41 p.m. (May 4, 2019); Audio of Senate Finance Comm., House Bill 49, testimony
of Major Andrew Greenstreet, Deputy Director, Alaska State Troopers, at 10:05:09 -
10:09:46 a.m. (May 10, 2019); Audio of Senate Finance Comm., House Bill 49, comments
of Sen. Bill Wielechowski, Sen. Peter Micciche, and Sen. Mike Shower at 3:56:28 -
4:05:31 p.m. (May 12, 2019).
28 See, e.g., Audio of House Finance Comm., House Bill 49, comments of Rep. Dan
Ortiz at 1:05:51 - 1:07:43 p.m. and Rep. Andy Josephson at 1:14:25 - 1:15:25 p.m. (May 4,
2019); Audio of Senate Finance Comm., House Bill 49, comments of Sen. Bill
Wielechowski at 3:56:25 - 3:59:03 p.m. and Sen. Donny Olson at 4:03:00 - 4:03:44 p.m.
(May 12, 2019).
29 See, e.g., Audio of Senate Finance Comm., House Bill 49, comments of Sen. Mike
Shower at 2:06:22 - 2:07:13 p.m. and Sen. Peter Micciche at 2:10:23 - 2:11:20 p.m.
(May 9, 2019); Audio of Senate Finance Comm., House Bill 49, comments of Sen. Peter
Micciche at 3:59:25 - 4:02:12 p.m. (May 12, 2019).
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----------------------- Page 11-----------------------
previously convicted only of attempting to commit the enumerated crime of simple drug
possession - in other words, even if their previous conviction was for a class B
misdemeanor offense.30
For these reasons, we conclude that the plain language of
AS 11.71.040(a)(12), without an explicit reference to attempts, does not support an
inference that the legislature intended to include attempted fifth-degree misconduct
involving a controlled substance as an enhancing conviction. Because the legislative
history of the statute does nothing to rebut this understanding, it suggests that the
recidivist statute should be interpreted as excluding attempted drug offenses from
serving as predicate convictions.
But to the extent there is any lingering ambiguity in the interpretation of
this statute and its legislative history, we apply the rule of lenity to conclude that a
conviction for attempted fifth-degree controlled substances misconduct is not a prior
qualifying offense - and by extension, neither is attempted fourth-degree controlled
substances misconduct.31
In sum, we conclude that attempted fourth-degree controlled substance
misconduct does not have "elements similar" to fifth-degree controlled substance
misconduct, the plain language of the statute does not include attempt offenses, and the
legislative history is, at best, ambiguous with respect to whether the legislature intended
to include attempted simple possession as a predicate conviction. We accordingly
30 We also note that, in the recidivist provision of other statutes, the legislature was
clear when it intended to include a broad range of related offenses - enumerating, for
example, all of the assault statutes, or large swaths of Chapter 41 offenses against a person.
See, e.g., AS 11.41.220(a)(5); AS 11.41.260(a)(6).
31 See State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985) (explaining that given
the due process implications of a criminal conviction, "[a]mbiguities in criminal statutes
must be narrowly read and construed strictly against the government"); McDole v. State ,
121 P.3d 166, 169 (Alaska App. 2005).
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----------------------- Page 12-----------------------
construe the repeat offender provision of AS 11.71.040(a)(12) against the State,
concluding that attempted fourth-degree misconduct involving a controlled substance
is not a qualifying predicate conviction.
Conclusion
We REVERSE the superior court's order denying Bowen's motion to
dismiss Counts III and IV of the indictment.
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