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

Fax: (907) 264-0878

E-mail: corrections @ akcourts.gov

IN THE COURT OF APPEALS OF THE STATE OF ALASKA

MIKE STEELY MORGAN,

Appellant,

v.

STATE OF ALASKA,

Appellee. Court of Appeals No. A-13512

Trial Court No. 3AN-18-12600 CR

O P I N I O N

No. 2739 — January 27, 2023

Appeal from the Superior Court, Third Judicial District,

Anchorage, Erin B. Marston, Judge.

Appearances: Bradly A. Carlson, Law Office of Bradly A.

Carlson, LLC, under contract with the Public Defender Agency,

and Samantha Cherot, Public Defender, Anchorage, for the

Appellant. Seneca Theno Freitag, Assistant Attorney General,

Office of Criminal Appeals, Anchorage, and Treg R. Taylor,

Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

Judge HARBISON.

Under AS 11.41.230(a)(1), a person who recklessly causes physical injury

to another person commits the crime of fourth-degree assault. This offense is generally

classified as a class A misdemeanor, but under AS 11.41.220(a)(5), the offense is

elevated to third-degree assault, a class C felony, if the defendant has at least two priorconvictions, within the previous ten years, for certain enumerated offenses or for an

offense of this or another jurisdiction with “elements similar” to those of an enumerated

offense.

In the present case, Mike Steely Morgan was convicted in 2019, following

a jury trial, of third-degree assault under the repeat-offender provision of

AS 11.41.220(a)(5). 1 To meet its burden under this provision, the State presented

evidence of Morgan’s 2017 conviction for assault under Anchorage Municipal Code

(AMC) 08.10.010(B)(1) and his 2016 conviction for assault on a police officer under

AMC 08.10.010(D). The State argued that both of these offenses had “elements similar”

to the elements of fourth-degree assault under AS 11.41.230(a)(1)

— an offense that is

specifically enumerated in the repeat-offender provision of AS 11.41.220(a)(5).

Morgan then moved for a judgment of acquittal, arguing that, as a matter

of law, his 2016 conviction for assault on a police officer under AMC 08.10.010(D) was

not a qualifying prior conviction under the repeat-offender provision of

AS 11.41.220(a)(5). (Morgan conceded that his 2017 assault conviction was a

qualifying prior conviction.) The superior court denied Morgan’s motion.

Morgan challenges this ruling on appeal. He contends, and the State agrees,

that to be guilty of assaulting a police officer under AMC 08.10.010(D), a defendant

must a lso violate subsection (B), which enumerates the four ways o ne can commit an

assault under the ordinance.

But only two of the four offenses specified in AMC 08.10.010(B) are

qualifying prior offenses for purposes of the recidivist third-degree assault statute. And

the documents that we are authorized to consult to determine the statutory subsection

– 2 – 2739 1 Morgan was also charged with resisting arrest, under AS 11.56.700(a)(1), but he was

acquitted of this offense at trial.under which Morgan was convicted are unclear as to the basis for his 2016 conviction.

Accordingly, the record does not establish that Morgan has two prior qualifying

convictions for purposes of the recidivist third-degree assault statute.

We therefore reverse Morgan’s conviction for third-degree assault (but we

remand this case to the superior court with instructions to enter a judgment of conviction

for the lesser included offense of fourth-degree assault).

Procedural background

Morgan was indicted for third-degree assault under AS 11.41.220(a)(5),

and his case proceeded to a jury trial in May 2019. In order to establish that Morgan had

been convicted of at least two qualifying offenses as required by the repeat-offender

provision of AS 11.41.220(a)(5), the State presented evidence of Morgan’s 2017

conviction for recklessly causing physical injury to another person under

AMC 08.10.010(B)(1) and his 2016 conviction for assault on a police officer under

AMC 08.10.010(D).

After the evidence was presented, but before the case was submitted to the

jury for deliberations, Morgan moved for a judgment of acquittal under Alaska Criminal

Rule 29(b). He argued that his 2016 conviction for assault on a police officer under

AMC 08.10.010(D) was not a qualifying prior conviction under AS 11.41.220(a)(5).

Morgan pointed out that AS 11.41.220(a)(5) includes only the “physical injury”

provisions of AS 11.41.230(a)

— i.e.

, subsections (a)(1) and (a)(2)

— as qualifying prior

offenses, but it excludes the “fear” assault provision

— subsection (a)(3). 2 He noted that

– 3 – 2739 2 Both AS 11.41.230(a)(1) and AS 11.41.230(a)(2) include, as an element, that the

defendant caused physical injury to another person; these offenses accordingly are commonly

referred to as “physical assaults.” By contrast, AS 11.41.230(a)(3), criminalizes recklessly

(continued...)his 2016 conviction was for violating an Anchorage municipal ordinance that proscribes

both physical injury assaults and fear assaults.

This ordinance, AMC 08.10.010, provides, in relevant part:

A. It is unlawful for any person to commit an assault.

B. A person commits an assault if:

1. That person recklessly causes physical injury

to another person;

2. With criminal negligence that person causes

physical injury to another person by means of a

dangerous instrument;

3. By words or other conduct that person

recklessly places another person in fear of

imminent physical injury; or

4. That person recklessly uses words or other

conduct which places a family member in

reasonable fear of imminent physical injury or

death to that family member or another person,

provided however, this subsection does not

prohibit lawful discipline of a minor by a parent

or another person with lawful physical custody

or control of a minor.

. . . .

D. It is unlawful when an assault is committed against the

person of a police officer, firefighter, paramedic or animal

control officer and the person committing the offense knows

or reasonably should know that such victim is a police

officer, firefighter, paramedic or animal control officer

engaged in the performance of official duties.

– 4 – 2739 2 (...continued)

placing another person in fear of imminent physical injury and does not have, as an element,

the requirement that the defendant actually caused injury.Morgan argued that his conviction for violating this ordinance did not satisfy the repeatoffender provision of AS 11.41.220(a)(5) because his judgment of conviction did not

specify the subsection under which he was convicted and because the Anchorage

ordinance includes fear assaults

— which are not similar to any offense enumerated in

AS 11.41.220(a)(5).

The State opposed this motion. Relevant to this appeal, the prosecutor

asserted that the probable cause portion of the complaint charging Morgan with the 2016

assault alleged that Morgan “grabbed the officer’s genitals and squeezed, causing

significant pain.” The prosecutor argued that this confirmed that Morgan’s prior offense

was a “physical injury” assault

— and thus similar to AS 11.41.230(a)(1)

— rather than

a “fear” assault.

The court took the matter under advisement, and after the jury found

Morgan guilty of third-degree assault, the court resumed its consideration of Morgan’s

motion. The court ultimately denied the motion in a written order. In its order, the court

focused on the text of AMC 08.10.010(D), which criminalizes an assault “against the

person” of a police officer. The court found that the “against the person” language in this

ordinance was intended to reference “physical injury” assaults and to exclude “fear”

assaults. After construing AMC 08.10.010(D) in this manner, the court found that the

elements of Morgan’s 2016 statute of conviction were “similar” to the elements of

AS 11.41.230(a)(1).

This appeal followed.

– 5 – 2739Why we conclude that Morgan’s conviction for assault under

AMC 08.10.010(D) does not satisfy the repeat-offender provision of

AS 11.41.220(a)(5)

The sole question presented by this appeal is whether the superior court

erred when it determined that Morgan’s 2016 conviction for assault on a police officer

under AMC 08.10.010(D) satisfied the repeat-offender provision of AS 11.41.220(a)(5)

— i.e.

, when it determined that Morgan’s prior conviction was for an offense having

“elements similar” to the elements of AS 11.41.230(a)(1).

In other contexts, when determining whether another jurisdiction’s offense

had “elements similar” to an offense under Alaska law, both the Alaska Supreme Court

and this Court have applied a categorical approach, comparing the elements of the two

relevant statutes rather than examining the facts of the defendant’s prior offense. For

example, in determining whether an out-of-state conviction qualified as an offense

subject to sex offender registration in Alaska, the supreme court compared “the elements

of the [other jurisdiction’s] statute of conviction to the elements of the allegedly similar

Alaska statute,” without reference to the underlying facts. 3 This Court has likewise

conducted a categorical analysis when determining whether another jurisdiction’s

offense was similar to a felony in Alaska for purposes of presumptive sentencing. 4

We similarly conclude that the statutory language of AS 11.41.220(a)(5)

— referring to prior offenses from another jurisdiction with “elements similar” to one of

the enumerated offenses

— requires us to compare the elements of Morgan’s prior 2016

municipal conviction with the elements of a physical injury fourth-degree assault under

AS 11.41.230(a)(1) or (2).

3 State, Dep’t of Pub. Safety v. Doe , 425 P.3d 115, 120 (Alaska 2018).

4 Borja v. State , 886 P.2d 1311, 1312, 1314 (Alaska App. 1994).

– 6 – 2739Morgan’s prior judgment specifies that he was convicted under

AMC 08.10.010(D)

— i.e.

, committing “an assault

. . . against the person of a police

officer.” But the actual parameters of this offense are set out in subsection (B), which

establishes four separate assault offenses in its four subsections. The text of two of these

subsections

— AMC 08.10.010(B)(1) and (2)

— is nearly identical to the text of

AS 11.41.230(a)(1) and (2), which are the “physical injury” assaults that are specifically

enumerated under AS 11.41.220(a)(5). Thus, if a person is convicted of committing an

assault under either of these two subsections of AMC 08.10.010(B), the person

necessarily will have committed a crime with elements that are similar to an enumerated

offense under AS 11.41.220(a)(5).

But the other two provisions of AMC 08.10.010(B)

— subsections (3) and

(4)

— do not include, as an element, a requirement that the defendant cause physical

injury to another person. Instead, these offenses criminalize conduct that places another

person in fear of physical injury. In fact, the language of subsection (B)(3) is identical

to the language of AS 11.41.230(a)(3) (the “fear assault” provision of the Alaska

misdemeanor assault statute), which is not included in the list of qualifying offenses

under AS 11.41.220(a)(5).

As a result, convictions under subsection (B)(1) or (B)(2) of

AMC 08.10.010(B) are qualifying convictions for purposes of the repeat-offender

provision of AS 11.41.220(a)(5), but convictions under subsection (B)(3) or (B)(4) are

not qualifying convictions.

In this case, the superior court concluded that the “against the person”

language found in AMC 08.10.010(D) limits the offense to “physical injury” assaults and

excludes “fear” assaults. But on appeal, the parties agree that this ruling was incorrect.

In particular, the parties agree that the specific subsection of AMC 08.10.010 under

which Morgan was convicted

— assault on a police officer under subsection (D)

— must

– 7 – 2739be for conduct that is proscribed by one of the four subsections of AMC 08.10.010(B).

In other words, a defendant may be convicted of assault “against the person of a police

officer” under subsection (D) if they engage in conduct against a police officer that is a

“physical injury” assault under subsections (B)(1) or (2) or a “fear” assault under

subsections (B)(3) or (4).

We agree with the parties that the superior court misconstrued

AMC 08.10.010(D). 5 In fact, our review of the legislative history of this ordinance

provides additional support for the parties’ position.

The text of AMC 08.10.010, including the “against the person” language

that the superior court relied on in issuing its decision, was based on the California Penal

Code. 6 Under California law, when a defendant actually causes physical injury to

another person, the defendant has committed the crime of “battery” rather than

“assault.” 7 Thus, under the California Penal Code, an assault “against the person” does

not refer to a “physical assault.” (Indeed, California law includes the “against the

person” language in all of its assault provisions.) Accordingly, the phrase “against the

person” in AMC 08.10.010(D) does not necessarily equate to a “physical injury” assault.

Rather, the provisions set out in AMC 08.10.010(B) establish whether a particular assault

under (D) was a fear assault or a physical injury assault.

5 See Marks v. State , 496 P.2d 66, 67-68 (Alaska 1972) (appellate courts must

independently assess whether a concession of error is supported by the record on appeal and

has legal foundation).

6 See Anchorage Ordinance (AO) No. 85-209, § 1 (Nov. 26, 1985) (enacting former

AMC 08.05.030 (1985), an earlier version of AMC 08.10.010, and noting that the language

was “[a]dapted from CPC [Cal. Penal Code] [§] 240-243[.]”).

7 Compare Cal. Penal Code § 240, with Cal. Penal Code § 242.

– 8 – 2739Because the superior court erred when it determined, as a matter of law, that

any conviction under AMC 08.10.010(D) was a qualifying prior “physical injury”

assault, we must examine whether the record nonetheless establishes that Morgan’s

conviction was for a physical injury assault under AMC 08.10.010(B)(1) or (2). While

we cannot look to the underlying facts of Morgan’s prior conviction to determine

whether it has “elements similar” to a physical injury assault, we can look to certain

record documents to attempt to determine under which subsection Morgan was

previously convicted. This “modified” categorical approach applies to divisible statutes,

which have “multiple, alternative elements,” effectively creating several different ways

of committing a crime. 8

Under the modified categorical approach, if the statute of conviction is

divisible into alternative sets of elements, a court may consider certain court records for

the limited purpose of determining the statutory subsection under which the defendant

was previously convicted. But the court may only consider particular “extra-statutory

materials,” such as the indictment, jury instructions, or plea agreement and colloquy, to

determine what offense, with what elements, the defendant was actually convicted of

committing. 9

The State acknowledges that Morgan’s 2016 judgment shows only that he

was convicted of violating AMC 08.10.010(D), and it does not specify whether Morgan

committed a physical injury assault under subsection (B)(1) or (2), or a fear assault under

subsection (B)(3) or (4). The State nevertheless contends that the application of a

modified categorical approach to AMC 08.10.010 reveals that Morgan’s 2016 conviction

8 Descamps v. United States , 570 U.S. 254, 264 (2013); see Doe , 425 P.3d at 123

(adopting the modified categorical approach with respect to the determination of whether a

person with a prior out-of-state conviction must register as a sex offender in Alaska).

9 Descamps , 570 U.S. at 262-63; Doe , 425 P.3d at 123 n.34.

– 9 – 2739was for a physical assault. According to the State, the complaint charging Morgan with

the 2016 assault on a police officer contains a probable cause statement which alleged

that Morgan squeezed the police officer’s genitals, causing him pain. The State argues

that the complaint thus establishes that Morgan’s prior offense was “similar” to a

physical assault under AS 11.41.230(a)(1).

But t he Alaska Supreme Court has c autioned that o nly “facts found by a

court of law or conceded by [the defendant]” may be considered when applying a

modified categorical approach to determining statutory similarity. 10 Here, Morgan’s

2016 conviction was based on his plea of no contest to the charge that he violated

AMC 08.10.010(D), an ordinance that proscribes both fear and physical injury assaults.

There was no evidence that Morgan conceded, as part of his plea agreement, that he

caused physical injury. Rather, the probable cause statement was simply an allegation

that Morgan caused physical injury to a police officer, and the State cannot rely upon

such “non-elemental facts” to establish that Morgan committed a physical assault. 11

Indeed, the United States Supreme Court has cautioned that the modified

categorical approach is not to be “repurposed” as a technique for discovering whether

a defendant’s prior conviction for violating a divisible statute rested on facts that could

have satisfied the elements of a specifically enumerated qualifying offense. 12 Because

10 Doe , 425 P.3d at 123.

11 Jones v. State , 215 P.3d 1091, 1100 (Alaska App. 2009) (noting “a plea of no contest

is an admission of every essential element of the offense well-pleaded in the charging

document.

. . . A no contest plea is not a concession of other, non-essential assertions of fact

contained in the affidavit supporting the complaint.” (citations, modifications, and internal

quotation marks omitted)).

12 Mathis v. United States , 579 U.S. 500, 513-14 (2016).

– 10 – 2739the extra-statutory materials “will not in every case speak plainly,” 13 “any lingering

ambiguity about them can mean the government will fail to carry its burden of proof in

a criminal case.” 14

Here, the application of a modified categorical approach does not clearly

reveal which of the four subsections of AMC 08.10.010(B) formed the basis of Morgan’s

2016 conviction. This lingering ambiguity means that the State has f ailed to carry its

burden of establishing that Morgan’s 2016 conviction was for an offense that has

elements that are similar to the elements of AS 11.41.230(a)(1). 15

For these reasons, we reverse Morgan’s conviction for third-degree assault

under the repeat-offender provision of AS 11.41.220(a)(5). However, because the jury

found, as an element of this offense, that Morgan committed the crime of fourth-degree

assault under AS 11.41.230(a)(1), we instruct the superior court on remand to enter a

judgment of conviction for this lesser included offense and to resentence Morgan

accordingly.

Conclusion

The judgment of the superior court is REVERSED. This case is

REMANDED to the superior court for further proceedings consistent with this opinion.

13 Id. at 519.

14 Pereida v. Wilkinson , 141 S.Ct. 754, 765 (2021).

15 Cf. id. at 762-66 (holding that, in civil immigration context, application of the

modified categorical approach did not clearly reveal which of the four subsections of the

relevant statute formed the basis of the individual’s prior conviction).

– 11 – 2739