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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

JAMES BUSTER BOWEN, 

 Petitioner, 

 v.

STATE OF ALASKA, 

 Respondent. 

Court of Appeals No. A-13756 

Trial Court No. 3KN-20-00771 CR 

O P I N I O N

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 

methamphetamine.1 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 

possession with intent to manufacture or deliver, a controlled substance).2 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 thirddegree 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.
– 3 – 2752

full briefing.3 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).

This question is one of statutory interpretation that we review de novo.

4

“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)).
– 4 – 2752

history, in an attempt to give effect to the legislature’s intent, with due regard for the 

meaning the statutory language conveys to others.’”5

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 

term of art that has acquired a particular meaning through a series of judicial decisions.6

The Alaska Supreme Court has explained that whether statutes have “similar” elements 

depends on whether their elements are “categorically alike with no significant 

differences.”7 Under this categorical approach, it is the elements that must be similar, 

not the specific facts underlying the defendant’s prior conviction.8 But this does not 

mean that the elements must be “identical.”9Instead, 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)).
– 5 – 2752

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).
– 6 – 2752

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 
– 7 – 2752

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.
– 8 – 2752

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).
– 9 – 2752

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.
– 10 – 2752

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).
– 11 – 2752

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).
– 12 – 2752

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.