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Oskolkoff v. State (5/11/2012) ap-2360

Oskolkoff v. State (5/11/2012) ap-2360

                                                  NOTICE 

         The text of this opinion can be corrected before the opinion is published in the Pacific 

        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 

         attention of the Clerk of the Appellate Courts. 



                                  303 K Street, Anchorage, Alaska     99501
 

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                            E-mail:   corrections @ appellate.courts.state.ak.us
 



                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 


----------------------- Page 2-----------------------

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). 



                                                   - 2 -                                                2360 


----------------------- Page 3-----------------------

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.
 



                                                  - 3 -                                               2360 


----------------------- Page 4-----------------------

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. 



                                                 - 4 -                                             2360
 


----------------------- Page 5-----------------------

                (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 



                                                  - 5 -                                             2360
 


----------------------- Page 6-----------------------

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 



                                                   - 6 -                                               2360
 


----------------------- Page 7-----------------------

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. 



                                                   - 7 -                                              2360
 


----------------------- Page 8-----------------------

"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. 



                                             - 8 -                                        2360
 

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