Avila v. State
In Avila v. State, 22 P.3d 890 (Alaska App. 2001) the Court explained that to qualify as a "substantial step," the defendant's act must be "strongly corroborative of the actor's criminal purpose."
Soon after Avila was decided, we reiterated that Alaska's attempt statute "is intended to encompass a wide-range of acts beyond mere preparation."
In Avila, the defendant, who was incarcerated, asked his girlfriend to deliver heroin to him in prison.
On appeal, he argued that his phone calls to his girlfriend amounted to no more than solicitations to deliver heroin to him. But the Court held that the phone calls were part of, or resulted in, the "substantial step" in Avila's attempt to possess heroin with intent to deliver.
The Court explained that under AS 11.16.110, when Avila solicited his girlfriend to deliver heroin to him in prison, "Avila became responsible for any of the girlfriend's conduct that might constitute a substantial step toward the accomplishment of that crime."
Alaska Statute 11.16.110 provides, in pertinent part, that "a person is legally accountable for the conduct of another constituting an offense if ... with intent to promote or facilitate the commission of the offense, the person ... solicits the other to commit the offense." Consequently, Avila could be convicted of attempt if, after the solicitation, either he or his girlfriend "performed a substantial step toward the commission of the intended crime."
The Court concluded that Avila was guilty of the attempt because his girlfriend, as a result of Avila's solicitation, contacted a third party to obtain money to be used to purchase heroin, and then sought -- albeit unsuccessfully -- a heroin dealer to complete the purchase.
The Court held that a reasonable jury "could properly conclude that the girlfriend's conduct amounted to a 'substantial step' toward accomplishing a delivery of heroin to Avila."