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, Court of Appeals No. A-13512 Appellant, Trial Court No. 3AN-18-12600 CR v. OPINION STATE OF ALASKA, Appellee. 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 prior convictions, 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 also violate subsection (B), which enumerates the four ways one 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 1 Morgan was also charged with resisting arrest, under AS 11.56.700(a)(1), but he was acquitted of this offense at trial. –2– 2739 under which Morgan was convicted are unclear as …
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