CRIMINAL LAW
Court of Appeals of Alaska (2023)
Olivia Wagner
In Bowen v. State, 533 P.3d 935 (Alaska Ct. App. 2023), the court of appeals held that attempted fourth-degree misconduct involving a controlled substance was not a qualifying predicate conviction under a felony enhancement statute. (Id. at 937). Alaska Statute 11.71.050(a)(4) criminalizes the simple possession of most controlled substances. (Id. at 936). This offense is classified as fifth-degree misconduct involving a controlled substance, a class A misdemeanor. (Id.). The same conduct is classified under AS 11.71.040(a)(12) as fourth degree misconduct involving a controlled substance, a class C felony, if the defendant was convicted in the preceding ten years under AS 11.71.050(a)(4), or an offense with similar elements. (Id.). Bowen was indicted under this repeat defender provision, as seven years earlier he was convicted of attempted fourth-degree misconduct involving a controlled substance. (Id.). The State argued that the elements of attempted fourth-degree misconduct are similar to fifth-degree misconduct under AS 11.71.050(a)(4), thereby elevating Bowen’s offenses to class C felonies. (Id.). After unsuccessfully moving for reconsideration of the court’s order, Bowen appealed. (Id.). In reversing the lower court’s holding, the court of appeals stated that while the elements of the offenses must be similar, the specific facts underlying the defendant’s prior conviction do not. (Id. at 938). The court further reasoned that the elements of an attempt ordinarily do not overlap with the elements of the target crime, as it is not necessary for the State to prove any of the elements of a target crime to convict a defendant of attempt. (Id.). Finally, the court looked to the plain language of AS 11.71.040(a)(12), which sets forth a completed list of crimes with similar elements to simple possession. (Id.). Applying the principle of expressio unius est exclusio alterius, the court assumed that all omissions in the statute should be understood as exclusions. (Id. at 938–39). The court of appeals reversed the lower court’s decision, holding that attempted fourth-degree misconduct involving a controlled substance was not a qualifying predicate conviction under a felony enhancement statute. (Id. at 937).