HAROLD P. KANKANTON, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Third Judicial District, Anchorage, Warren W. Matthews, Judge. Trial Court No. 3AN-11-421 CR.
Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
Following a jury trial, Harold P. Kankanton was convicted of two counts of second-degree theft for stealing two " access devices."  One count involved the theft of various credit cards. The other count involved the theft of a driver's license. The superior court sentenced Kankanton to 3 years to serve on each count with the sentences to run concurrently.
On appeal, Kankanton challenges only his second conviction (the conviction for theft of a driver's license), arguing that a driver's license does not qualify as an " access device" under Alaska law.
Having reviewed the language and legislative history of the relevant statutes, we conclude that there is minimal support, if any, for the State's claim that the legislature intended a driver's license to automatically fall within the definition of an " access device." Because the legislative intent is ambiguous, the rule of lenity requires us to construe the statute against the government. We therefore reverse Kankanton's conviction for theft of the driver's license.
The definition of " an access device" under Alaska law
Under AS 11.46.130(a)(7), a person commits second-degree theft " if with the intent to deprive another of property, or to appropriate property of another to oneself or a third person, the person obtains the property of another" and the property is " an access device."  The term " access device" is defined under AS 11.81.900(b)(1):
" access device" means a card, credit card, plate, code, account number, algorithm, or
identification number, including a social security number, electronic serial number, or password, that is capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services, or that can be used to initiate a transfer of property[.]
Under the plain language of this statute, an item is an " access device" if (1) it falls within the listed categories -- " a card, credit card, plate, code, account number, algorithm, or identification number, including [but not limited to ] a social security-number, electronic serial number, or password" -- and (2) it is " capable of being used, alone or in conjunction with another access ...