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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ELIZABETH ROSE HILLMAN,
                                                      Court of Appeals No. A-12032
                            Appellant,               Trial Court No. 3AN-13-7865 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                No. 2524 — September 23, 2016


              Appeal from the District Court, Third Judicial District,
              Anchorage, Jo-Ann Chung, Judge.

              Appearances: Cynthia L. Strout, Attorney at Law, Anchorage,
              for the Appellant. John H. Haley, Assistant Attorney General,
              Office of Special Prosecutions, Anchorage, and Craig W.
              Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge.*

              Judge ALLARD.


              Following a jury trial, Elizabeth Rose Hillman was convicted of promoting
contraband in the second degree, AS 11.56.380(a)(1), for “introduc[ing], tak[ing],



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
convey[ing], or attempt[ing] to introduce, take, or convey contraband into a correctional
facility.” On appeal, Hillman argues she could not be convicted of promoting contraband
under this subsection because this subsection was not meant to apply to individuals in
her position (i.e., those who are incarcerated and already inside a correctional facility).
              For the reasons explained in this opinion, we agree that subsection(a)(1) of
the statute does not apply to Hillman’s conduct. We therefore reverse her conviction.


       Factual and legal background of this case
              Hillman was serving a jail sentence at Hiland Mountain Correctional
Center. After a visit in the enclosed prison yard with a visitor who came from outside
the correctional facility, Hillman entered the “strip-out” room — a room where inmates
are strip-searched to prevent contraband from entering the prison from the visitor yard.
When Hillman took off her shirt and handed it to the officer on duty, a plastic baggie fell
to the floor. The baggie contained chewing tobacco — a substance prohibited to
prisoners. Based on this incident, the State charged Hillman with second-degree
promoting contraband.
              Alaska Statute 11.56.380(a) provides for two ways that a person can
commit the crime of second-degree promoting contraband:
              (a) A person commits the crime of promoting contraband in
              the second degree if the person
                      (1) introduces, takes, conveys, or attempts to
              introduce, take, or convey contraband into a correctional
              facility; or
                      (2) makes, obtains, possesses, or attempts to make,
              obtain, or possess anything that person knows to be
              contraband while under official detention within a
              correctional facility. (emphasis added)



                                           –2–                                       2524

              Here, Hillman was under official detention within a correctional facility
when she obtained the contraband, but she was prosecuted under subsection (a)(1) of the
statute, the subsection enacted for persons who are bringing contraband into the facility.
              At Hillman’s trial, her attorney pointed out that subsection (a)(2) — not
subsection (a)(1) — was the portion of the statute that appeared to apply to Hillman’s
conduct, and the attorney asked the district court to grant Hillman a judgment of acquittal
on this basis. After hearing the defense attorney’s argument, the prosecutor sought to
amend the charging document to include both subsection (a)(1) and subsection (a)(2),
and the prosecutor asked the judge to instruct the jury on both subsections.
              The trial judge denied Hillman’s motion for judgment of acquittal and the
State’s motion to amend the charge. The judge concluded that both subsections applied
to Hillman’s conduct, and that the State therefore had the discretion to charge Hillman
under either subsection.
              At the close of the trial, the jury was instructed on subsection (a)(1) only
(which has a lower mens rea than subsection (a)(2)), and the jury convicted Hillman of
violating that subsection.
              Hillman now appeals, renewing the same legal arguments she raised below.
The State has not cross-appealed the denial of its motion to amend the charge.


       Why we conclude that Hillman’s conduct did not violate subsection (a)(1)
              The proper interpretation of a statutory provision is a question of law that
we review de novo.1 Alaska courts apply a sliding-scale approach to statutory
interpretation.2 Under this approach, the plain language of a statute is significant but


   1
       Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).
   2
       Id.

                                           –3–                                       2524

does not always control; rather, “legislative history can sometimes alter a statute’s literal
terms.”3 As a general rule, “the plainer the language of the statute, the more convincing
contrary legislative history must be.”4
               Here, the legislative history of AS 11.56.380 unambiguously demonstrates
that the legislature intended the two subsections to apply to two different groups of
people. The first subsection (a)(1) was intended to apply to non-incarcerated persons
who brought contraband from outside the correctional facility into the facility. The
second subsection (a)(2) was intended to apply to incarcerated persons who obtain
contraband while they are within the correctional facility.
               The Commentary to Alaska’s Revised Criminal Code explains this
distinction:
               Note that the crime [of promoting contraband in the second
               degree] can be committed by either the person who brings the
               contraband into the facility (§ 380(a)(1)) or the person
               confined in the facility (§ 380(a)(2)). Use of the culpability
               term “knows” in § 380(a)(2) and its absence in (a)(1)
               indicates that the person who brings the contraband into the
               facility is not required to know that the item is contraband.
               Recklessness is sufficient as to that element (§ 11.81.­
               610(b)(2)). Such recklessness could be established by the
               nature of the item (i.e., firearm) or by the posting by
               correctional officials of a list of contraband items near the
               entrance of the facility.5




   3
       Id.
   4
       Id.
   5
       Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at
79, 1978 Senate Journal 1399.

                                            –4–                                        2524

              The statutory language directly mirrors this Commentary. Subsection (a)(1)
of the statute refers to persons who introduce, take, or convey contraband “into a
correctional facility.” Subsection (a)(2), on the other hand, refers to persons who make,
obtain, or possess contraband while the person “[is] under official detention within a
correctional facility.”
              We therefore conclude that only subsection (a)(2) of the statute applies to
Hillman’s conduct in this case. Because Hillman was tried under subsection (a)(1), the
district court should have granted Hillman’s motion for a judgment of acquittal.
              The judgment of the district court is REVERSED.




                                          –5–                                      2524

