Peterson, Larson, Colbry v. State of Alaska (12/20/96) ap-1507
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY W. PETERSEN, )
) Court of Appeals No. A-5724
Appellant, ) Trial Court No. 3AN-93-5447 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
BRUCE C. LARSON, )
) Court of Appeals No. A-5834
Appellant, ) Trial Court No. 3AN-94-9215 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
DONALD G. COLBRY, )
) Court of Appeals No. A-5893
Appellant, ) Trial Court No. 3AN-94-4480 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1507 - December 20, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: G. Blair McCune, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellants Petersen and Colbry.
Randall W. Patterson, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant Larson. W. H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee in File Nos. A-5724 and A-5834
(Petersen and Larson). Eric A. Johnson,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee in File No. A-5893 (Colbry).
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
In these consolidated appeals, the three defendants
challenge the constitutionality of Alaska's stalking statutes,
AS 11.41.260 and AS 11.41.270. As explained below, we conclude that
the statutes do not violate the Constitution, and thus we affirm the
defendants' convictions.
Facts of the Case: Petersen
In 1989, Gary W. Petersen began receiving massage therapy
at the Gatekey health center in Anchorage. One of the therapists
who treated Petersen was R.H., an apprentice therapist at the health
center. Eventually, Petersen chose R.H. as his exclusive massage
therapist. Later in 1989, R.H. completed her apprenticeship at
Gatekey and took a job as a massage therapist at the Kanady
Chiropractic Clinic. To continue receiving massage treatments from
R.H., Petersen began to patronize the Kanady Clinic. By the spring
of 1990, Petersen began making frequent appearances at the Kanady
Clinic, sometimes showing up to visit with R.H. even when he did not
have an appointment.
In June 1990, R.H. married. She sent Petersen an
invitation to the wedding, but he did not attend. In late 1990,
R.H. invited Petersen to a New Year's Eve party at her home. In
conjunction with this invitation, R.H. provided Petersen with her
home telephone number and a map showing directions to her home.
Petersen made a brief appearance at the party and then left.
On one occasion in 1991, Petersen showed up unexpectedly
at R.H.'s home, telling her he had come by because he was "worried"
about her. R.H. was uncomfortable with Petersen's uninvited visit,
so she told him that she was busy. Petersen left.
Several times during the winter and spring of 1991,
Petersen showed up at the Kanady Clinic just as R.H. was leaving
work. According to R.H., Petersen "invited himself" to join her
evening activities on those occasions (viewing ice sculptures, going
to see a movie, going to a folk festival, eating dinner at a
restaurant). R.H. felt "annoyed [and] intruded upon" because
Petersen kept showing up at the clinic as she left work, but she
allowed Petersen to come along on outings because she "felt sorry
for him".
However, R.H. grew increasingly uncomfortable as Petersen
began to "show up everywhere". Petersen began visiting the Kanady
Clin and other public places, and she often found him at the Carrs
grocery in Eagle River. (This store was near R.H.'s house, but
Petersen lived in Anchorage.)
R.H. began telling relatives and friends of her discomfort
with Petersen's behavior. She informed her employer, Dr. Kanady,
that she no longer wished to see Petersen as a patient because "his
behavior was inappropriate". R.H. eventually confronted Petersen,
telling him that his behavior was making her uncomfortable and that
she wanted him to start seeing a different therapist at the clinic.
Dr. Kanady also met with Petersen; Kanady told Petersen that R.H.
was no longer comfortable serving as his therapist, and he referred
Petersen to a different massage therapist at the clinic. Despite
these conversations, R.H. continued to encounter Petersen at public
events and observe him outside the clinic.
On June 1, 1991, R.H. attended a rodeo with her children.
She saw Petersen as she entered the gate, so she sat at the far end
of the bleachers to avoid him. Petersen came over to where R.H. and
her children were sitting; he asked if he could sit with them. R.H.
told Petersen he could not þ that she didn't want to have any
contact with him, and that she wanted him to leave. Petersen
nevertheless took a seat near R.H.; he came over to R.H. three
times, demanding to know why R.H. would not see him as a friend and
as a therapist. R.H. told Petersen she would not explain anymore;
she just wanted Petersen to leave her alone. R.H. finally gathered
her children and left the rodeo. Petersen left the rodeo and
followed R.H. in his car, but R.H. lost him by driving faster than
normal.
Later in 1991, Petersen confronted R.H. as she was leaving
the Bear Paw Festival in Eagle River. Petersen (who was in his
vehicle) pulled up next to R.H. as she was walking with her
children. Petersen again demanded to know why R.H. refused to speak
with him. This conversation ended when R.H. called to her husband
for help. R.H.'s husband ran across the parking lot, kicked
Petersen's car, then grabbed Petersen and told him to stay away from
R.H. and their family. Petersen's behavior. On July 1, 1991, Kanady
directed the clinic's attorney to send Petersen a letter "firing"
him as a patient at the clinic. (EN1)
On the same day this letter was drafted, R.H. telephoned
Petersen; Dr. Kanady, Kanady's wife, and Anchorage Police Officer
Paul T. Morino were in the room, listening on the speakerphone.
R.H. told Petersen that she wanted him to stay away from her and
that she did not want to see him, either as a patient or as a
friend. Petersen said that he understood and that he would stay
away.
However, Petersen continued to show up outside the Kanady
Clinic and at other places where R.H. went. On a Saturday in the
fall of 1991, R.H. spotted Petersen sitting in his car behind a gas
station across the street from the Kanady Clinic. Petersen was
watching R.H., and R.H. could see "some big camera lens or telescope
of some sort" in Petersen's car. Later that fall, R.H. encountered
Petersen as she was driving from her home toward the Old Glenn
Highway. R.H. drove north on the Old Glenn to lose Petersen, then
circled back to the police substation in Eagle River. Despite
R.H.'s evasive efforts, Petersen was able to follow her; he
eventually arrived at the substation, where R.H. pointed him out to
the police as the man who was following her. The officer on duty
at the substation later telephoned Petersen, telling him that R.H.
was fearful of him and that he should stay away from her.
In the early morning hours of January 6, 1992, R.H. and
her husband noticed the taillights of a vehicle in their driveway.
When they turned on the outside floodlight, they saw a car that
looked like Petersen's. The car left the driveway, and R.H. and her
husband went back to bed. About twenty minutes later, R.H.'s
husband heard a car coming up the driveway. Taking a gun, he went
outside and sneaked up to the car. The driver of the car was
Petersen. Petersen apparently heard the husband's approach; he
looked over his shoulder, saw R.H.'s husband, and quickly drove out
of the driveway. R.H.'s husband fired two shots into a snowbank as
Petersens cass. On April 3, 1992, he received a suspended
imposition of sentence; one of his conditions of probation was that
he not go to R.H.'s residence.
Two months later, on June 5, 1992, R.H. and her children
attended the Renaissance Fair in Anchorage. R.H. spotted Petersen
in the distance. He began circling through the crowd, moving toward
R.H. and her children until he was within touching distance. R.H.
began screaming for Petersen to get away from her. With the crowd
now staring, Petersen backed away. R.H. took her children and left.
As she was leaving, she looked and saw Petersen watching her; she
ran to her car.
On August 27, 1992, R.H. called the police after seeing
Petersen's car pass back and forth in front of the Alaska Athletic
Club, where she was working part-time. Throughout the fall and
winter, R.H. often saw Petersen watching her at the Kanady Clinic
and at the athletic club.
On January 6, 1993, R.H. encountered Petersen at an
intersection near her home. Petersen attempted to ram R.H.'s car
with his. R.H. sped home, with Petersen following her. R.H. got
inside her house and called the police. When the police contacted
Petersen, he denied being in the area. Then he told the officer
that he and R.H. had had an affair, and he accused R.H. of making
false accusations against him in order to cover up her other extra-
marital affairs.
The next day, R.H. saw Petersen pacing back and forth
across the street from the Kanady Clinic; he was watching her. R.H.
called her husband, who immediately drove to the clinic. By the
time he arrived, Petersen was gone.
For his attempt to ram R.H.'s car, Petersen was convicted
of assault. Sentenced on April 7, 1993, Petersen was placed on five
years' probation and ordered to have no contact with R.H.,
"including not being within one block of her places of employment
or residence."
On May 29, 1993, R.H. encountered Petersen as she entered
the Carrs grocery in Eagle River. Petersen stood directly in front
of R.H.; she told him to "just keep going", but he responded, "I was
here first." R.H. raised her voice and again told Petersen to "just
keep going". Petersen walked back toward the cash registers, and
R.H. lost track of him. When she had finished shopping and was
leaving the store, R.H. noticed that Petersen was in the store's
coffee shop. As she got in her car, she looked back at Petersen,
and he "flipped [her] off".
On June 21, 1993, R.H. had dinner with a friend at the
Regal Alaska Hotel. As the two women walked out of the hotel toward
R.H.'s car, R.H. looked up and saw Petersen walking toward them.
Petersen approached within "touching distance". R.H. said to him,
"You are the biggest creep in the universe." In response, Petersen
began to berate R.H., repeatedly calling her a "whore". R.H. became
scared, fearful that Petersen intended to assault her again. R.H.
and her friend got into R.H.'s car, then drove to the front of the
hotel where the friend's car was parked. They observed Petersen
standing outside the hotel entrance, watching them. Petersen ran
across the street and into a park, where he hid in some bushes.
Petersen then got into his car and followed the two women as they
drove out of the parking lot in their respective cars. R.H. drove
home and called the police.
On Juntered Petersen. Petersen passed R.H. "within touching
distance", but did not speak to her; he then walked away. R.H.
called the police on her cellular phone and waited for them to
respond. While she waited, Petersen came back through the crowd and
passed in front of R.H. and her children, glaring at them. The
police never responded to R.H.'s call, so she left the festival.
Petersen watched her as she left.
One week later, on July 18, 1993, Anchorage Police Officer
Lise Shore saw Petersen's car on the Old Glenn Highway, near R.H.'s
home. Petersen slowed his car as if to turn onto R.H.'s street,
then drove past and turned onto another street, Amnundson Road.
Officer Shore then saw Petersen come back out of Amnundson Road, re-
enter the Old Glenn Highway, and turn onto R.H.'s street. Following
Petersen, Shore turned onto R.H.'s street and then drove up R.H.'s
driveway. In the driveway, she encountered Petersen, who was coming
out of the driveway. Petersen attempted to drive around Shore's
patrol car, but Shore used her car to block Petersen's exit.
When Shore questioned Petersen as to why he was in that
area, Petersen claimed he was looking for Amnundson Road. When
Shore informed Petersen that she had seen him turn onto Amnundson
earlier, then had observed him come back and turn onto R.H.'s
street, Petersen claimed he had been looking for a place to turn
around. When Officer Shore reminded Petersen that he was not
supposed to be at R.H.'s house, Petersen said that he thought it
would be all right to turn around in R.H.'s driveway because he
hadn't seen any lights on in R.H.'s house.
While Shore was questioning Petersen, R.H. drove up and
encountered Shore and Petersen at the end of her driveway. Officer
Shore arrested Petersen and placed him in her patrol car; he began
beating his head against the prisoner's screen. Petersen told Shore
that he loved R.H. and that he had come to her house only because
he wanted to "explain some things to her".
Petersen was charged with first-degree stalking,
AS 11.41.260(a)(2). He was convicted following a jury trial in the
Anchorage superior court.
Facts of the Case: Larson
Bruce Larson, Jr., was involved in a romantic relationship
with I.H.; he lived in Unalaska with I.H. and her daughter. In May
of 1994, Larson was convicted of assaulting I.H., and a restraining
order was entered that prohibited Larson from having any contact
with her. Larson was later convicted of violating the restraining
order. However, despite these difficulties, I.H. and Larson resumed
their relationship.
On December 1, 1994, Larson (who is a commercial
fisherman) returned to Unalaska from over a month at sea. Almost
immediately, the relationship between Larson and I.H. began to
deteriorate. On December 3rd, Larson and I.H. went out to the
UniSea Bar in Dutch Harbor. Larson made several remarks that
prompted I.H. to leave without him. She handed Larson the keys to
her car and told him that she would be leaving with friends. As
I.H. walked across the parking lot, Larson ran up from behind her
and "slammed" into her back. Larson then took hold of I.H.. She
told him, "Please don't touch me; leave me alone." Larson screamed
at I.H., calling her a "fucking bitch".
I.H. got into her friends' car and they started to drive
to the other side of the island (from Dutch Harbor to Unalaska).
Larson chased them, tailgating their car in a dangerous manner.
Because of Larson's actions, I.H. asked her friends to take her to
the Unalaska police station. Larson followed them most of the way,
then made a u-turn and left. At the police station, I.H. explained
that Larson had her keys and that she no longer wanted him to stay
at her apartment. She asked the police to accompany her home and
to assist her in removing Larson's belongings.
The police and I.H. went to her apartment and gained entry
by borrowing a key from the landlord. Larson was not in I.H.'s
apartment, but the officers found him in the upper floor of the
apartment building. Larson relinquished his key to I.H.'s apartment
and removed his personal possessions from the apartment. I.H. told
Larson not to come back, and the police also instructed him to stay
away. However, when the police checked the area a short time later,
they found Larson hiding under a car. They again directed him to
leave the area.
Later that night, Larson telephoned I.H. approximately
fifteen times. During one of these calls, Larson informed I.H. that
he was going to pick up I.H.'s daughter from the babysitter and take
her. In response, I.H. telephoned the police and again asked for
their assistance: an officer stood guard as I.H. went to the
babysitter and picked up her child.
The next day (December 4th), Larson telephoned I.H. to
tell her that she needn't go to work because he had "trashed" her
office. (It turned out that this was not true.) On December 8th,
Larson appeared at I.H.'s door at 1:00 a.m. and asked her to talk
with him; when I.H. declined, Larson sat in a truck outside I.H.'s
apartment building until the police came and asked him to leave.
On December 10th, Larson repeatedly called I.H. at work.
Later that day, he confronted her at the UniSea Bar (where she was
seated with a group of friends). Using vulgar language, Larson
accused several of the men in the group of having had sex with I.H..
When I.H. asked Larson to leave, he told her, þDon't bother driving
the car tonight; it won't start.þ He also told her, "I'm going to
ruin your night. I'm going to screw up your life. You're a bitch."
I.H. took a cab back to her apartment. As she was putting
her key in the lock, she became aware that Larson was behind her.
Larson said, "You fucking bitch, I'm going to kill you. You're the
next Nicole Simpson." Although I.H. was scared, she shoved Larson
away; then she finished unlocking the door and went inside. Once
inside her apartment, she had a friend call the police. When the
police arrived, they found Larson at a nearby phone booth; they
arrested him.
Larson was indicted for first-degree stalking under two
theories: first, that he had previously been convicted of violating
a domestic violence restraining order, AS 11.41.260(a)(5), and
second, that he had previously been convicted of assaulting I.H.,
AS 11.41.260(a)(6)(A). Under a subsequent plea agreement, Larson
pleaded no contest to a reduced charge of second-degree stalking,
reserving his right to attack the constitutionality of the statute.
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Facts of the Case: Colbry
Donald Colbry was married to E.H. for several years; their
family included two children from Colbry's former marriage, as well
as a daughter of their marriage. After the birth of their daughter,
Colbry began drinking and manifested a tendency toward violence.
In May 1993, E.H. asked Colbry to agree to a dissolution. Colbry
initially agreed, but he delayed leaving the house. He finally
moved out in August 1993.
During September 1993, Colbry telephoned E.H. three or
four times a day, both at home and at work. He threatened to fight
for custody of their daughter and to "take [E.H.] for everything
[she] had". Colbry also threatened J.L., a man whom he suspected
of being romantically involved with E.H.. Toward the end of
September, Colbry assaulted E.H.; she called the troopers, who took
Colbry away, but no criminal charges were filed against Colbry at
that time.
Two weeks later, on October 10, 1993, Colbry again
assaulted E.H.; he slapped her and pushed her through a screen door.
This time, E.H. decided to seek judicial intervention. Accompanied
by J.L., she went to the courthouse and obtained a domestic violence
restraining order against Colbry. The magistrate who issued the
order telephoned Colbry from court and informed him that he was now
forbidden from contacting E.H..
E.H. and J.L. left the courthouse in separate cars.
Colbry drove past in the opposite direction; seeing their cars,
Colbry turned around and began to pursue J.L. at high speed. J.L.
drove to the State Trooper headquarters on Tudor Road. As J.L. was
telling the troopers about Colbry's actions, Colbry drove up and
told the troopers that J.L. had tried to run him off the road.
Then, in the trooper's presence, Colbry informed J.L. that he was
going to kill him.
When Colbry drove away from this encounter, he went to
E.H.'s home. Ignoring the no-contact provision of the domestic
violence restraining order (which had been issued only hours
before), Colbry barged into E.H.'s house and began to scream at
E.H.. He told her that the next time he encountered J.L., J.L.
wouldn't be able to ask the troopers for assistance because Colbry
would "kill him before he got there". When E.H. tried to reach the
telephone, Colbry grabbed her by the neck and pulled her away. The
police were summoned by the couple's daughter, who had run to a
neighbor's house to make the call. By the time the police arrived,
Colbry was gone.
In the ensuing weeks, Colbry frequently appeared at E.H.'s
workplace and followed E.H. home from work. In December 1993,
Colbry used his key to enter E.H.'s residence without permission.
When he began to yell at E.H., she called the police. The police
dispatcher spoke with Colbry and convinced him to leave, but after
Colbry finished speaking with the dispatcher, he grabbed E.H. and
threw her against the wall before he left.
In January 1994, Colbry was convicted of fourth-degree
assault for the episode of October 10, 1993 (Colbry's visit to
E.H.'s house on the day the court issued the domestic violence
restraining order). Colbry received a suspended imposition of
sentence. As a condition of probation, he was again ordered to have
no contact with E.H..
In March 1994, Colbry was convicted of trespass based on
the December episode in which Colbry entered E.H.'s house without
permission and threw her against the wall. Again, as a condition
of probation, Colbry was ordered to have no contact with E.H.. In
addition, E.H. obtained another domestic violence restraining order
against Colbry.
Despite these court orders, Colbry continued to telephone
E.H.'s home, and he repeatedly threatened to harm or kill J.L. (with
whom E.H. was now living). (EN2) On February 26, 1994, Colbry
telephoned E.H. and told her that she should not plan on marrying
J.L. because, if E.H. intended to do that, Colbry would kill him
first. In early March, Colbry saw E.H. and J.L. together in a
restaurant. A few days later, Colbry called E.H. and told her that
if he ever saw E.H. sitting together with J.L. again, Colbry would
"jerk [J.L.] off the chair and kill him".
On June 7, 1994, after E.H. informed the police that
Colbry had again violated the restraining order, the police prepared
to monitor and record Colbry's next telephone call. Colbry called
E.H.'s house later that day; J.L. answered the phone. During
ensuing the conversation, Colbry made numerous threats to injure or
kill J.L..
In August 1994, Colbry was indicted for first-degree
stalking under six separate theories. Colbry ultimately pleaded no
contest to a single consolidated count that charged him with first-
degree stalking under both AS 11.41.260(a)(1) and 260(a)(2) (because
his acts of stalking were violations of both the domestic violence
restraining order and his condition of probation), as well as
260(a)(6)(A) (because he had prviously been convicted of assaulting
E.H.). Colbry reserved the right to challenge the constitutionality
of the statute. Cooksey, supra.
The Definition of "Stalking" and a General
Discussion of the Defendants' Constitutional
Claims
The basic definition of "stalking" is codified in
AS 11.41.270, the second-degree stalking statute. Subsection (a)
of this statute declares that the crime of stalking is committed
when a person
knowingly engages in a course of conduct that
recklessly places another person in fear of
death or physical injury, or in fear of the
death or physical injury of a family member.
Subsections (b)(1) and (b)(3) of the statute provide a limiting
definition of the phrase, "course of conduct":
In this section, "course of conduct" means
repeated acts of nonconsensual contact
involving the victim or a family member[.] ...
"[N]onconsensual contact" means any contact
with another person that is initiated or
continued without that person's consent, [or]
that is beyond the scope of the consent
provided by that person, or that is in
disregard of that person's expressed desire
that the contact be avoided or discontinued;
"nonconsensual contact" includes
(A) following or appearing within the
sight of that person;
(B) approaching or confronting that
person in a public place or on private
property;
(C) appearing at the workplace or
residence of that person;
(D) entering onto or remaining on
property owned, leased, or occupied by that
person;
(E) contacting that person by telephone;
(F) sending mail or electronic
communications to that person; [or]
(G) placing an object on, or delivering
an object to, property owned, leased or
occupied by that person[.]
This is the basic definition of the crime. This conduct, by itself,
constitutes second-degree stalking. The offense becomes first-
degree stalking under AS 11.41.260(a) if the actions constituting
the stalking were in violation of a domestic violence restraining
order, see 260(a)(1), or were in violation of a condition of
probation, parole, or bail, see 260(a)(2); or if the victim was
under age 16, see 260(a)(3); or if the defendant possessed a deadly
weapon during the stalking, see 260(a)(4); or if the defendant had
previously been convicted of either stalking or violating a domestic
violence restraining order, see 260(a)(5); or if the defendant had
previously been convicted of one or more of the assaultive crimes
listed in 260(a)(6) involving the same victim.
In the present appeals, the defendants assert that the
statutory definition of stalking is unconstitutionally "vague".
However, their primary argument is that the statute criminalizes
"innocent behavior protected by [the] rights of association and the
freedom a citizen [possesses] to go about his daily behavior".
[Peterson's opening brief, p. 18] Properly understood, this is a
substantive due process claim or an overbreadth claim rather than
a vagueness claim.
A statute is unconstitutionally vague if its wording is
so imprecise "that people of common intelligence would be relegated
to differing guesses about its meaning". Schad v. Arizona, 501 U.S.
624, 632; 111 S.Ct. 2491, 2497; 115 L.Ed.2d 555 (1991). Such a
statute offends constitutional values in two major ways: by failing
to give people "adequate notice of the conduct that is prohibited",
and by placing a power of arbitrary or discriminatory enforcement
in the hands of police, prosecutors, and ultimately judges and
juries. Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979).
(EN3)
The defendants do level a cursory vagueness attack on a
few of the terms used in the definition of stalking. The defendants
assert in conclusory fashion, without providing any supporting
argument or citation to legal authority, that the terms "follow" and
"approach", as well as the phrase "appear within the sight of", are
all too vague to be understood by people of common intelligence.
The stalking statutes require the State to prove that the
defendant acted knowingly. We believe that people of common
intelligence would readily understand the meaning of "knowingly
follow another person", "knowingly approach another person", and
"knowingly appear within the sight of another person". See State
v. Culmo, 642 A.2d 90, 98-99 (Conn. 1993), People v. Bailey, 657
N.E.2d 953, 962-63 (Ill. 1995), and State v. Bryan, 910 P.2d 212,
217-21 (Kan. 1996) (all holding that the term "follow" is not
vague). Given the apparent clarity of these terms, the defendants'
conclusory assertions of vagueness are not sufficient to preserve
their claims. See Petersen v. Mutual Life Ins. Co. of New York, 803
P.2d 406, 410 (Alaska 1990) (þwhere a point is not given more than
a cursory statement in the argument portion of a brief, the point
will not be considered on appeal.þ).
The defendants also claim that the word "repeated" is too
vague to be understood. However, this court has interpreted
"repeated" to mean "more than once", and has held that this term is
not vague. Konrad v. State, 763 P.2d 1369, 1379 (Alaska App. 1988).
The defendants do not even cite Konrad, much less give any reason
for believing that it was wrongly decided.
This brings us to the defendants' primary argument. As
indicated above, the defendants' main argument is not that the
statutory definition of stalking is incapable of being understood.
Rather, they argue that the definition of the crime manifestly
includes too much. The defendants contend that the definition of
stalking includes innocent conduct þ blameless personal activities
that can not properly be criminalized by the legislature.
Essentially, the defendants are making a substantive due process
claim: they assert that the legislature has exceeded its proper
law-making authority. (EN4)
Alternatively, one could characterize the defendants'
argument as a claim that the statutory definition of stalking is
"overbroad" because it punishes conduct that people have a
constitutional right to engage in. Although courts often discuss
overbreadth as an aspect of vagueness, these two concepts are
distinct. "[A] statute may be invalid for being overbroad [even
though its wording is] clear and precise if it prohibits
constitutionally protected conduct." Stock v. State, 526 P.2d 3,
7 n.7 (Alaska 1974) (citing Grayned v. City of Rockford, 408 U.S.
104, 114; 92 S.Ct. 2294, 2302; 33 L.Ed.2d 222, 231 (1972)).
This recasting of the defendants' argument does not alter
the importance of the concerns the defendants raise. If anything,
it heightens those concerns: for between two laws, the first one
worded so ambiguously that it might proscribe innocent behavior and
the second one worded precisely to achieve this unlawful aim,
society might justifiably condemn the second law more strongly. We
thus turn to the merits of the defendants' challenges to the
definition of stalking.
The definition of "nonconsensual contact" contained in
AS 11.41.270(b)(3) is quite broad. "Nonconsensual contact" includes
such acts as approaching another person, appearing within sight of
another person, initiating a conversation, calling someone on the
telephone, or sending a letter to someone if these acts are done
"without that person's consent". The wording of 270(b)(3) suggests
that the phrase "without that person's consent" is not limited to
instances in which the other person has previously expressed a
desire not to be contacted. Rather, it appears that this phrase
covers all contacts that are not expressly authorized beforehand.
(EN5) Defined in this fashion, "nonconsensual contact" could
include such everyday activities as making telephone solicitations
for businesses or charities, sending advertising brochures in the
mail, or walking up to someone to ask them to sign a political
petition or contribute to a social cause. These activities could
all be "nonconsensual contact" if the recipient of these attentions
was not in an agreeable mood.
The other side of the coin is that, even when the
recipient of these contacts has previously expressed a desire not
to be contacted, there may be situations in which a defendant's
right to continue the contact is constitutionally guaranteed. For
instance, the definition of "nonconsensual contact" is broad enough
to include a defendant who repeatedly pickets a government office
building or who makes repeated telephone calls to a government
office to protest an official's actions.
Nevertheless, the crime of stalking requires proof of more
than repeated acts of nonconsensual contact. Under AS 11.41.270(a),
the State must prove (1) that the defendant "knowingly" engaged in
repeated acts of nonconsensual contact, (2) that the defendant's
conduct placed another person in fear of injury or death (or in fear
of the injury or death of a "family member" as defined in AS 11.-
41.270(b)(2)), and (3) that the defendant acted "recklessly" with
regard to this result. The question, then, is whether these three
additional elements are sufficient to make the definition of
stalking constitutional.
Public Encounters
Defendants Petersen and Larson point out that, under
AS 11.41.270(b)(3), stalking includes the acts of "approaching ...
[another] person in a public place" and even "appearing within the
sight of that person" in a public place. The defendants suggest
that these provisions of the statute are so broad as to effectively
forbid people from attending public events, taking public
transportation, going to restaurants, engaging in normal shopping,
or even walking down the street for business or pleasure þ because
if the person were by chance to encounter or appear within sight of
the alleged stalking victim, the State could charge them with
recklessly disregarding the possibility that the other person would
be there too.
However, as explained above, the crime of stalking
requires proof that the defendant knowingly engaged in repeated acts
of nonconsensual contact. Under AS 11.81.900(a)(2), to prove that
a person "knowingly" engaged in conduct, the government must
establish that the person "[was] aware that [his or her] conduct
[was] of that nature". This provides one answer to the defendants'
contention that a person might be prosecuted for happening to attend
the same public function as the victim or happening to patronize a
restaurant or grocery at the same time as the victim. A defendant
who inadvertently encounters another person in a public place has
not "knowingly" approached or appeared within sight of that person.
This, however, is only a partial answer to the defendants'
argument. There may be times when the defendant knows beforehand
that the other person will be attending a public function (say, a
music festival or a municipal assembly meeting) that the defendant
also has a legitimate interest in attending. If the defendant
attends the festival or assembly meeting and the other person is
there as expected, the defendant will have "knowingly" come within
the sight of the other person. (EN6)
Additionally, the defendants suggest the hypothetical
situation of a person who, in the course of promoting a political
or social cause, knowingly initiates contact with other people
without their consent, either by approaching them on the street, or
by telephoning them, or by coming to their home or workplace. For
example, a person seeking signatures for a political petition might
come door-to-door or might approach people at public gatherings.
If the defendant's cause was unpopular, the defendant might
reasonably anticipate that most people would not welcome his or her
approach.
These objections lose their force when a defendant is
charged with first-degree stalking under either AS 11.41.260(a)(1)
or 260(a)(2) þ the provisions that speak to acts of stalking
committed while the defendant is under a court order or a parole
condition that prohibits the defendant from having contact with the
other person in the first place. The defendants in the present
appeals do not challenge the constitutionality of domestic violence
restraining orders or the constitutionality of no-contact orders
imposed as a condition of bail, probation, or parole. (EN7) Nor
have the defendants suggested any reason to believe that the
constitution forbids the legislature from enacting a criminal
statute that addresses a defendant's repeated knowing violations of
a no-contact order.
Of the three present appeals, two involve defendants who
were convicted of first-degree stalking under AS 11.41.260(a)(1) or
(a)(2). Both Petersen and Colbry were under court orders not to
have contact with their victims. The facts of Colbry's case do not
raise the issue of knowing encounters in public places; Colbry was
charged with stalking for committing physical assaults on his victim
and for making a series of threatening telephone calls to her.
However, some of the acts charged against Petersen consisted of
approaching R.H. in public places. Because of this, the existence
of no-contact orders is significant in Petersen's case.
One of Petersen's conditions of probation from his April
1992 trespass conviction prohibited him from going to R.H.'s
residence. This prohibition was broadened when, in April 1993,
Petersen was convicted of assault for attempting to ram R.H.'s car.
In Petersen's conditions of probation from the 1993 assault case,
he was ordered to have no contact at all with R.H., "including not
being within one block of her places of employment or residence".
Despite this no-contact order, Petersen confronted R.H. as she
entered a grocery store in May 1993, he confronted and yelled at
R.H. at the Regal Alaska Hotel in June 1993, he approached "within
touching distance" of R.H. at the Bear Paw Festival in July 1993,
and he was finally arrested one week later after a police officer
found him in R.H.'s driveway. Peterson was convicted of violating
AS 11.41.260(a)(2): stalking when the acts constituting the offense
were also violations of a condition of probation.
Because Peterson was under court order to have no contact
with his victim, and because he does not challenge the lawfulness
of this condition of probation, we conclude that Petersen had no
constitutional right to knowingly approach or follow R.H., even in
public places or at public events. Even if these portions of the
definition of stalking might be unconstitutionally broad when
applied generally, Petersen was under a no-contact order, and the
State's proof of this additional element in Petersen's case means
that he has no claim.
Colbry, like Petersen, was under a court order not to
contact his victim. Moreover, even if the stalking statutes posed
constitutional problems with respect to public encounters, these
problems would not affect Colbry's case. The acts of nonconsensual
contact charged against Colbry were not public encounters, but
rather physical assaults and threatening telephone calls.
Defendant Larson's case is distinguishable from Petersen's
and Colbry's because Larson was convicted of second-degree stalking;
the State did not assert that Larson's conduct violated any court
order or parole condition. Thus, in Larson's case we must address
the contention that the definition of stalking is unconstitutional
because it allows a person to be prosecuted for encountering someone
else in a public place when that other person does not wish to have
contact with him.
Here, we confront again the hypothetical situation of a
political protester who knowingly engages in repeated nonconsensual
contacts with a government official to protest the government's
actions or policies þ for example, by picketing the building where
the official works, or by making repeated telephone calls to her
office, or by sending her vituperative letters of protest. However,
as already noted, these actions do not constitute the crime of
stalking unless the State proves that the defendant recklessly
placed another person in fear of injury or death. That is, the
State must establish that the defendant's actions actually caused
another person to fear injury or death, that the defendant
consciously disregarded a substantial and unjustifiable risk that
his actions would have this effect, and that the defendant's
disregard of this risk constituted a gross deviation from the
standard of care that a reasonable person would exercise in that
situation. See AS 11.81.900(a)(3).
The government clearly possesses the authority to
prosecute a person for recklessly causing another to fear imminent
injury or death. This is the essence of the third- and fourth-
degree assault statutes, AS 11.41.220(a) and 11.41.230(a). The
First Amendment does not protect the utterance of threats, even when
the defendant's threats are motivated by, or comprise part of, a
political protest. For instance, 18 U.S.C.  871 makes it a felony
to threaten to harm or take the life of the President of the United
States. Because this statute is squarely aimed at speech, the
United States Supreme Court has declared that the statute must be
interpreted so as to preserve the First Amendment values of open and
robust political debate. Watts v. United States, 394 U.S. 705, 707-
08; 89 S.Ct. 1399, 1401-02; 22 L.Ed.2d 664, 667 (1969). Thus, the
statute does not prohibit political hyperbole that would not cause
a reasonable person to perceive an actual threat to the President.
Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02. However, it is no
defense that a threat to the President is accompanied by religious
or political statements. See, e.g., United States v. Callahan, 702
F.2d 964, 966 (11th Cir. 1983), cert. denied 464 U.S. 840, 104 S.Ct.
133, 78 L.Ed.2d 128 (1983).
Thus, the requirement that the defendant recklessly place
another person in fear of injury or death substantially answers the
defendants' challenge to the portions of the stalking statutes
dealing with encounters in public places. Still, it is unclear
whether this is a total answer to the defendants' First Amendment
arguments. It is possible to imagine troublesome cases brought
under the stalking statute. For instance, protesters might
repeatedly picket an abortion clinic or the office of the Ku Klux
Klan, committing acts of "nonconsensual contact" against the people
who work there. (Under AS 11.41.270(b)(3), nonconsensual contact
is defined as "any contact with another person that is initiated or
continued without that person's consent, ... includ[ing] ...
appearing at the workplace of that person".) Depending upon the
emotion and the rhetoric of the protesters, the people working
inside might fear injury or death because of the protesters'
actions, and there might be close questions as to (1) whether that
fear was reasonable, and (2) whether, even if the fear was
reasonable, the protesters' actions should still be protected by the
First Amendment.
Besides these overbreadth issues (situations where the
stalking statutes may infringe constitutional rights), the stalking
statutes also present substantive due process issues. Leaving aside
the realm of constitutionally protected activities, there are still
limits to a legislature's power to regulate or criminalize conduct.
See, e.g., Richards v. Thurston, 424 F.2d 1281, 1284-85 (1st Cir.
1970) (declaring that the guarantee of liberty is "incomplete" if
"the state [is] free to interfere with those personal aspects of our
lives which have no direct bearing on the ability of others to enjoy
their liberty"). The stalking statutes pose due process problems
because they potentially apply to situations where defendants engage
in no activity other than going about their daily lives.
For instance, a group of skinheads may routinely ride the
municipal bus. Their appearance, their language, and their demeanor
may cause other regular bus riders to fear for their safety. The
skinheads know that the other bus riders are afraid of them, but
they continue to ride the bus. Have the skinheads committed
stalking?
Or, to take another example, a person paroled from prison
after serving a sentence for sexual abuse of children may be
employed at the check-out counter of a grocery. Parents who
patronize the grocery become aware of the parolee's background.
Although the parents would prefer not to come into contact with the
parolee, they inevitably do. Moreover, because of the parolee's
background, these parents are afraid for the safety of their
children who sometimes stop at the grocery after school to buy
snacks. The parolee learns that the parents are afraid, but he
continues to work at his job. Has the parolee committed stalking?
In both of these hypothetical situations, the government
could plausibly claim that the defendant, through repeated acts of
nonconsensual contact as defined in AS 11.41.270(b)(3), has placed
another person in fear of injury or death (either for themselves or
for a family member). Further, the government could plausibly claim
that the defendant consciously disregarded a substantial and
unjustifiable risk that his conduct would have this result. Yet the
defendant's conduct was not directed at anyone; that conduct
consisted of nothing more than riding the bus or pursuing a
livelihood. (EN8)
Thus, the definition of stalking may present troubling
cases. However, when a constitutional challenge is leveled against
a statute whose main concern is conduct rather than speech, "the
possibility of difficult or borderline cases will not invalidate a
statute" if there is a "hard core of cases to which ... the statute
unquestionably applies". Stock v. State, 526 P.2d 3, 9 (Alaska
1974). See Broadrick v. Oklahoma, 413 U.S. 601, 615-16; 93 S.Ct.
2908, 2918; 37 L.Ed.2d 830, 842 (1973) (Before a statute will be
invalidated for overbreadth "where conduct and not merely speech is
involved, ... the overbreadth of [the] statute must [be]
substantial[,] ... judged in relation to the statute's ...
legitimate sweep. [If not], whatever overbreadth may exist should
be cured through case-by-case analysis[.]þ)
For instance, in Holton v. State, 602 P.2d 1228 (Alaska
1979), the supreme court upheld the definition of the offense of
contributing to the delinquency of a minor against the defendant's
claim that the phrase "immoral conduct" was too vague to be under-
stood by persons of common intelligence. The court ruled that,
regardless of the potential vagueness of this phrase, inducing a
minor to engage in fellatio came within the "hard core" of that
term. 602 P.2d at 1236-37. And in Peratrovich v. State, 903 P.2d
1071 (Alaska App. 1995), this court upheld the definition of "sexual
contact" against the contention that the phrase "normal caretaker
responsibilities" might be construed too narrowly, thus criminal-
izing some innocent touchings. We held that, regardless of any
potential ambiguity, the defendant's act of touching the victim's
breast against her will was part of the core conduct prohibited by
the statute. 903 P.2d at 1078.
The facts of Larson's case do not raise the constitutional
concerns argued in the defendants' briefs. Larson was charged with
physically assaulting I.H., threatening to kill her, threatening to
kidnap her child, and chasing and tailgating I.H.'s vehicle. In his
motion to dismiss, Larson did not deny any of this conduct, nor did
he claim that he had a constitutional right to engage in any of this
conduct.
It is true that one of the incidents between Larson and
I.H. occurred in a bar, but on this occasion Larson did not simply
come within sight of I.H. while patronizing the bar. Rather, Larson
walked over to I.H.'s table, verbally abused her and her companions
using vulgar language, then threatened to disable I.H.'s vehicle and
"screw up [her] life". The bar's bouncer intervened, removing
Larson before a fight could start. Larson thereupon went to I.H.'s
residence and waited for her to come home; as I.H. was entering her
door, Larson approached her and threatened to kill her. Even
supposing that the First Amendment gave Larson the right to approach
I.H. in a public place and insult her, he had no right to come to
her residence and threaten to kill her.
More generally, none of the cases presently before the
court are "borderline" cases. The acts of stalking involved in
these cases þ knowingly contacting another person in violation of
a court order, threatening to harm or kill the other person or their
current romantic partner, threatening to kidnap a person's child,
and physically assaulting another person þ are at the core of the
definition of stalking. The defendants do not claim that they had
any constitutional right to engage in these activities. Assuming
for purposes o periphery, the acts charged against these defendants
can not reasonably be characterized as constitutionally protected
activities.
Accordingly, we are convinced that the potential due
process and overbreadth problems in the definition of stalking do
not require invalidation of the stalking statutes. Rather, those
problems should be resolved on a case-by-case basis, if and when we
face litigation that actually presents those problems. We hold
that, as applied to these three defendants, the portions of the
stalking statutes dealing with public encounters are constitutional.
Telephone Contacts
The defendants raise a separate constitutional challenge
to AS 11.41.270(b)(3)(E), the portion of the statute specifying that
"contacting [another] person by telephone" is part of the definition
of "nonconsensual contact". Two of the present appeals involve acts
of telephonic contact between the defendants and their victims. In
Defendant Colbry's case, the charged conduct consisted almost
entirely of threatening telephone calls. (EN9) Relying on McKillop
v. State, 857 P.2d 358 (Alaska App. 1993), the defendants argue that
a person can not be prosecuted for making telephone calls unless the
State proves that the person's sole intention was to annoy or harass
the recipient of the call.
McKillop dealt with the provision of AS 11.61.120(a)(4)
that makes it a crime to "make[] an anonymous ... telephone call"
with the intent "to harass or annoy another person". In McKillop,
we concluded that this statutory provision would violate the First
Amendment unless the statute were construed to require proof that
the defendant's sole intent in making the call was to harass or
annoy. 857 P.2d at 364-65. We reached this conclusion because the
First Amendment protects social advocacy even when the speaker
chooses to remain anonymous, id. at 362, and even when the speaker
realizes (or intends) that listeners will perceive his speech as
harassing or annoying. Id. at 364.
Although we concluded in McKillop that the portion of the
harassment statute outlawing anonymous telephone calls had to be
construed narrowly to remain consistent with First Amendment
protections, the stalking statute differs significantly from the
harassment statute. Telephone contact with another person
constitutes "stalking" under AS 11.41.270 only when the telephone
contact is part of a series of knowing acts of nonconsensual contact
with the victim or a family member, and only when the defendant,
through this course of conduct, recklessly places another person in
fear of injury or death (or in fear that a family member will suffer
injury or death).
Placing another person in fear of injury or death by
making a telephone call or a series of telephone calls can be
likened to assault (but without the element of imminency). Compare
AS 11.41.230(a)(3), which forbids a person from recklessly placing
another person in fear of imminent injury "by words or other
conduct". The defendants in the present appeals do not argue that
they are constitutionally entitled to threaten other people over the
telephone. (EN10) However, they assert that a person could be
prosecuted under the stalking statutes for making telephone calls
that place another person in fear even when the other person's fear
is completely unreasonable.
The defendants point out that, under AS 11.81.900(a)(3),
a person acts "recklessly" with respect to a result (here, that
another person will be placed in fear of injury or death) if that
person "is aware of and consciously disregards a substantial and
unjustifiable risk" that the result will occur. The defendants
argue that a person might need to call an estranged spouse or lover
for perfectly legitimate, non-threatening reasons, yet at the same
time realize that the recipient of the calls is paranoid and will
likely feel threatened (albeit unreasonably) by the calls. The
defendants contend that, if this hypothetical person makes the
telephone calls, he or she can be prosecuted for stalking since he
or she will have "consciously disregard[ed]" the risk that the
telephone calls would make the other person fearful.
The answer to the defendants' contention is that the
definition of "recklessly" not only requires proof that the
defendant consciously disregarded the risk that his or her conduct
would cause the prohibited result, but also requires proof that this
risk was "unjustifiable", and that the risk was "of such a nature
and degree that disregard of it constitute[d] a gross deviation from
the standard of care that a reasonable person would observe in the
situation". Based on these two clauses of AS 11.81.900(a)(3), this
court held in Wyatt v. State, 778 P.2d 1169, 1170 (Alaska App.
1989), and reaffirmed in DeHart v. State, 781 P.2d 989, 990 (Alaska
App. 1989), that proof that a defendant "recklessly" placed another
person in fear of injury implicitly requires proof that the victim's
fear was reasonable.
When the legislature enacted the stalking statutes, the
legislature also adopted a letter of intent specifying that the
phrase "recklessly places another person in fear" used in AS 11.-
41.260(a) was to be construed in conformity with DeHart. See 1993
Senate Journal 1026-27. We therefore conclude that the stalking
statutes do not prohibit telephone calls or other nonconsensual
contacts made for legitimate purposes, even when the defendant knows
that the person contacted may (or will) unreasonably perceive the
contact as threatening. (EN11)
Constitutionality of the Stalking Statutes: Summary
The constitutional arguments raised by the defendants are
not trivial. As we noted at the beginning of this section, the
stalking statutes' definition of "nonconsensual contact" covers a
wide spectrum of social interaction. This definition is undoubtedly
the Alaska Legislature's most comprehensive codification of a
person's right to be free from unwanted contact. Yet even though
our society values and protects individual autonomy and privacy, our
society at the same time recognizes a person's right to engage in
uncomfortable, distasteful, and annoying contacts þ even abrasive
confrontations þ with other citizens. Such interactions are not
merely tolerated; they are explicitly protected by our Constitution.
However, the Constitution does not guarantee a right to
threaten other people. When a person's words or actions constitute
an assault þ when they cause other people to reasonably fear for
their own safety or the safety of those close to them þ the
Constitution no longer provides a refuge. We conclude that Alaska's
stalking statutes are constitutional because, in essence, they
outlaw assaultive conduct. To establish the crime of stalking, the
government must prove that the defendant knowingly engaged in
repeated acts of nonconsensual contact, the government must prove
that these nonconsensual contacts placed another person in fear of
injury or death, and the government must prove that the defendant
acted with reckless disregard for this result. Because these
elements must be proved, the Alaska stalking statutes do not, on
their face, prohibit constitutionally protected speech or conduct.
As we indicated above, the stalking statutes may present
difficult constitutional questions in particular hypothetical
situations. However, the conduct of the defendants in these three
appeals falls within the core of the statutory definition þ
assaultive conduct with no constitutional justification. We there-
fore reject the defendants' challenges to the statute.
Defendants Larson and Colbry present no issues on appeal
except the constitutionality of the definition of stalking. We
therefore affirm their convictions. Defendant Petersen raises other
issues, which we address in the next section of this opinion.
Other Issues Raised by Petersen
At Petersen's trial, the State introduced evidence
detailing Petersen's and R.H.'s interactions from the time Petersen
began receiving massage therapy from R.H. in 1989. Petersen argues
that the State should not have been permitted to introduce evidence
of any events that occurred before May 28, 1993, the effective date
of the stalking statutes. See ch. 40,  9 SLA 1993. He contends
that these pre-May 1993 contacts were "other bad acts" that should
have been excluded under Evidence Rules 403 and 404(b).
We disagree. The State was obliged to prove that Petersen
knowingly engaged in nonconsensual contact with R.H.. Obviously,
R.H.'s reaction to Petersen's pre-May 1993 contacts (in particular,
her explicit directions to Petersen that he stay away from her) were
relevant to prove that Petersen was aware that R.H. did not consent
to his post-May 1993 contacts with her.
Additionally, the State was obliged to prove that R.H. was
placed in fear of injury or death by Petersen's post-May 1993
contacts. Clearly, evidence of Petersen's long-standing course of
conduct toward R.H. þ his persistent refusal to stay away from her,
his repeated presence at her workplace, his middle-of-the-night
trespass at her home in January 1992, and his attempt to ram R.H.'s
car in January 1993 þ was relevant to establish that R.H. feared
injury or death at Petersen's hands.
Finally, the State was obliged to prove that Petersen
recklessly disregarded a substantial and unjustifiable risk that his
conduct would cause R.H. to fear injury or death. Again, Petersen's
pre-May 1993 conduct was relevant to prove this element of the
offense.
Petersen argues that these uses of the evidence do not fit
neatly into any of the categories listed in Alaska Evidence Rule
404(b)(1) ("motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident"). We find
the challenged evidence relevant to plan and knowledge. However,
even if Petersen were right, this would not bar admission of the
evidence. The legislature has declared that Rule 404(b)'s list of
proper purposes for other crimes evidence is not intended to be
exclusive. See ch. 79,  1(c) SLA 1991 ("The amendment of
[Evidence] Rule 404(b)(1) ... made by sec. 4 of this Act[] changes
the [rule] to make it one of inclusion and to establish that the
nonpropensity purposes listed in the rule are not inclusive and that
evidence can be admitted if it is relevant to a purpose not listed
in the rule.") Even before the legislature amended the rule, the
Alaska Supreme Court upheld the admission of evidence of a
defendant's other crimes when this evidence was needed to explain
the defendant's relationship with another person. Braham v. State,
571 P.2d 631, 641 (Alaska 1977), cert. denied, 436 U.S. 910, 98
S.Ct. 2246, 56 L.Ed.2d 410 (1978).
We therefore conclude that evidence of the pre-May 1993
contacts between Petersen and R.H. was admissible for non-propensity
purposes. We also agree with the trial judge that the evidence was
more probative than prejudicial. Petersen argued that most of his
contacts with R.H. had been consensual and that R.H. was a
manipulative person who was simply annoyed with Petersen, not
fearful of him. In this context, evidence of the pre-May 1993
contacts was highly probative.
Petersen next argues that he could not be convicted of
first-degree stalking under AS 11.41.260(a)(2) because the condition
of probation that barred him from contacting R.H. was entered on
April 7, 1993 þ before the effective date of the stalking statutes
(May 28, 1993). Petersen contends that, even if he committed
second-degree (misdemeanor) stalking, it would be an unlawful
retroactive application of the first-degree stalking statute if the
State were permitted to rely on the condition of probation from his
April 1993 assault conviction to enhance his offense to first-degree
(felony) stalking.
The Alaska Supreme Court addressed a similar contention
in Danks v. State, 619 P.2d 720 (Alaska 1980). The issue in Danks
was whether a statute that enacted increased penalties for repeat
drunk driving offenders could lawfully apply to a defendant who
committed drunk driving after the new law came into effect but whose
prior offenses were committed before the passage of the new law.
The defendant in Danks argued that sentencing him to the increased
penalties of the new law would amount to an unconstitutional
retroactive application of the law. The supreme court disagreed.
Quoting Gryger v. Burke, 334 U.S. 728, 732; 68 S.Ct. 1256, 1258; 92
L.Ed. 1683, 1687 (1948), the court stated:
[T]he fact that one of the convictions that
entered into the [defendant's sentencing]
calculations ... occurred before the Act was
passed [does not make] the Act invalidly
retroactive[.] The [defendant's] sentence as
a [repeat] offender or habitual criminal is not
to be viewed as either a new jeopardy or [an]
additional penalty for the earlier crimes. It
is a stiffened penalty for the latest crime,
which is considered to be an aggravated offense
because [it is] a repetitive one.
Danks, 619 P.2d at 722. This is the accepted view on this matter,
both as to increased punishments and to new offenses that include,
as an element of the crime, proof that the defendant was previously
convicted of an offense:
If the defendant commits crime A at a time when
there is no habitual criminal statute, then
such a statute is passed imposing increased
punishment for a second offense, and then the
defendant commits crime B, it is not within the
ex post facto prohibition to apply the habitual
criminal statute to crime B. No additional
punishment is prescribed for crime A, but only
for the new crime B, which was committed after
the statute was passed. Similarly, it is
permissible to define a crime as limited to
certain conduct engaged in by persons who have
theretofore been convicted of some other
offense and to apply the statute to one whose
earlier offense and conviction predated the
enactment of this [new] statute.
Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law
(1986),  2.4, Vol. 1, p. 139 (emphasis added).
Petersen's case is slightly different: his offense became
first-degree stalking, not strictly because of his prior criminal
conviction, but because he was on probation from that prior
conviction and because one of his conditions of probation forbade
him from having contact with R.H.. Compare AS 12.55.155(c)(20) (for
purposes of presumptive sentencing, an offense is aggravated if "the
defendant ... was on parole or probation for another felony").
Nevertheless, the same rule applies: the legislature can validly
enhance the degree of a defendant's crime based on the defendant's
pre-existing conditions of probation or based on a restraining order
previously entered against the defendant. We therefore reject
Petersen's contention that there was any illegality in convicting
him of first-degree stalking because he violated a condition of
probation imposed before the stalking law took effect. This did not
constitute a retroactive application of the stalking law.
Petersen argues that the trial judge should have
instructed the jury on certain lesser offenses. A defendant is
entitled to a jury instruction on a lesser included offense when
(1) the defendant necessarily committed the lesser offense if he or
she committed the charged offense in the manner alleged by the
State; (2) the defendant actually disputes the element or elements
distinguishing the charged offense from the lesser, and (3) the
evidence would support a reasonable conclusion that the defendant
is guilty of only the lesser offense and not the charged offense.
State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985); Elisovsky v.
State, 592 P.2d 1221, 1225 (Alaska 1979); Blackhurst v. State, 721
P.2d 645, 648 (Alaska App. 1986).
Petersen contends that his jury should have been
instructed on the lesser offense of second-degree stalking. As
explained above, the State alleged that Petersen was guilty of
first-degree stalking under AS 11.41.260(a)(2) because his acts of
stalking were also violations of the condition of probation that
prohibited him from having contact with R.H.. Petersen suggests
that the jury might have concluded that his contacts with R.H. in
various public places were "chance encounters". He argues that if
he encountered R.H. by chance, then these encounters did not
constitute violations of the no-contact order.
However, if Petersen's encounters with R.H. were inad-
vertent, if they were only chance meetings in public places, then
Petersen would not be guilty of either first- or second-degree
stalking. The stalking statutes require proof that the defendant
"knowingly" engaged in nonconsensual contact with the victim. If
the jury viewed the case as Petersen suggests, then they should have
acquitted him, not convicted him of the lesser degree of stalking.
Petersen also contends that an instruction on second-
degree stalking was needed because the jury might have found that
Petersen was not on probation. This argument was not preserved for
appeal. At the close of the evidence, Petersen's attorney did
submit a proposed instruction on second-degree stalking, but he had
no argument to support it:
THE COURT: [Defendant's proposed]
instruction number 2 is ... stalking in the
second-degree?
DEFENSE ATTORNEY: Mm-hm. It's the
misdemeanor.
PROSECUTOR: The State would be opposed.
THE COURT: All right. What is the
State's response to ... defendant's [proposed]
instruction number 2?
PROSECUTOR: Under Willett v. State, [836
P.2d 955, 958 (Alaska App. 1992),] the trial
court's required [to instruct the jury on a]
lesser included offense when, quote, "there is
a factual dispute as to an element of the
greater offense so that the jury could
rationally acquit on the greater and convict on
the lesser." ... Here, the only element that's
different between Stalking One and Stalking Two
is [the] existence of a court order. That
court order, the [court] took judicial notice
of. There has been no attack on that element
by cross[-examination] or by [evidence in] the
defendant's case. ... As I recall, [this
issue was not] brought up in any of the
witnesses' testimony, save [when] Officer Shore
was referring to it. I don't think a
reasonable juror, in light of the evidence that
was presented at trial, can find that the
existence of a court order is in doubt.
THE COURT: Mr. [Defense Attorney], your
response.
DEFENSE ATTORNEY: I don't have any, Your
Honor.
The trial judge accordingly denied Petersen's request for a second-
degree stalking instruction.
By declining to argue the point or provide any rationale
for giving a second-degree stalking instruction, the defense
attorney forfeited any claim of error. See Alaska Criminal Rule
30(a); Cornwall v. State, 915 P.2d 640, 653 n.11 (Alaska App. 1996)
(when a party offers a jury instruction but fails to provide any
support for it when the trial judge indicates that the instruction
may not be given, the party forfeits the right to assert that the
trial judge should have given the instruction). See also Hohman v.
State, 669 P.2d 1316, 1325-26 (Alaska App. 1983) (when a party
offers evidence which is challenged for lack of relevance, and the
offering party fails to make an offer of proof concerning the
potential relevance of the challenged testimony, the party thereby
forfeits the point on appeal). We further note that, even on
appeal, Petersen fails to point to any evidence suggesting a dispute
concerning the condition of probation that forbade him from
contacting R.H..
Petersen also contends that the jury should have been
instructed on disorderly conduct under AS 11.61.110(a)(6); this
statute forbids a person from "recklessly creat[ing] a hazardous
condition for others by an act which has no legal justification or
excuse". Petersen concedes that the elements of stalking do not
include the creation of a "hazardous condition for others", and that
the State could prove Petersen guilty of stalking without proving
that he committed the crime of disorderly conduct. If a jury could
rationally acquit the defendant of the purported lesser offense but
at the same time convict the defendant of the greater offense, then
the lesser offense is not "necessarily included" in the greater.
State v. Minano, 710 P.2d at 1016. Thus, disorderly conduct was not
a lesser included offense of stalking.
Petersen argues that the trial judge committed error when
she took judicial notice of the fact that Petersen was on probation
and that one of the conditions of his probation forbade him from
contacting R.H.. The roots of this issue are found in a pre-trial
motion that Petersen filed.
Before trial began, Petersen asked the trial judge to
preclude the State from making "any mention or reference to" his
April 1993 assault conviction (for attempting to ram R.H.'s car).
In making this request, Petersen offered to stipulate that he was
under a "court order" that prohibited him from approaching R.H.'s
house or workplaces. The defense attorney argued that the fact of
Petersen's conviction was irrelevant; what mattered (under the
first-degree stalking statute) was that Petersen was under a court
order not to contact the alleged victim. The prosecutor responded
that stipulation to a "court order" was not sufficient: Petersen
was charged with first-degree stalking under AS 11.41.260(a)(2), and
this statute requires the State to prove that Petersen's conduct
violated a specific type of court order þ a condition of probation.
Petersen's attorney continued to insist on a stipulation to a "court
order". The trial judge ruled that the State could not introduce
evidence of Petersen's conviction per se, but the judge also ruled
that the State was not obligated to accept the proposed stipulation.
See State v. McLaughlin, 860 P.2d 1270 (Alaska App. 1993).
Later, during the presentation of the State's case, the
prosecutor asked the judge for permission to introduce evidence of
Petersen's assault conviction and his conditions of probation. The
defense attorney objected. He noted that the judge had already
ruled that the State could not introduce evidence of Petersen's
conviction þ although he conceded that there was a certain
inconsistency in saying that the State could not introduce evidence
of Petersen's conviction but that the State was still entitled to
introduce evidence that Petersen was on probation. The judge
replied, "I think you're right ... . And therefore, both the
conviction and the probation condition come in."
Upon hearing this, Petersen's attorney renewed his
argument that the jury should be told only that "the district court
said he couldn't have contact [with R.H.], not that he was on
probation". The judge replied that the statute required proof that
Petersen had violated a condition of probation. She asked the
defense attorney if he had any objection to the following statement:
On April 7, 1993, the district court placed
Gary Petersen on probation for five years and
ordered him to have no contact with [R.H.],
including not being within one block of her
places of employment or her residence.
Petersen's attorney responded, "None" þ that is, he said that he had
no objection to the statement. The judge then declared that she
would read this statement to the jury at the close of the current
witness's testimony. The defense attorney made no immediate
comment. However, a few minutes later he told the judge that, when
he said "none", he meant only that he had no objection to the
court's proposed statement, given the court's earlier ruling that
the State was entitled to prove that Petersen had violated a
condition of probation (not just a "court order"). The defense
attorney stated that he was not "waiving anything". The judge
replied that she was entitled to take judicial notice of Petersen's
conditions of probation because they were established beyond
reasonable dispute by documents in Petersen's district court file.
The defense attorney did not respond to the judge's statement that
she was going to take judicial notice of Petersen's conditions of
probation.
Later in the trial, the prosecutor asked the judge to read
the above-quoted statement about Petersen's probation to the jury.
The judge did so without objection from Petersen's attorney.
On appeal, Petersen does not dispute the trial judge's
authority to take judicial notice of the starting date, length, and
conditions of Petersen's probation. See Lemon v. State, 522 P.2d
160, 162-63 (Alaska 1974) (upholding a judge's authority, in an
escape prosecution, to take judicial notice of the defendant's prior
conviction and sentence, thus establishing that the defendant had
escaped from a jail to which he had been confined "by direction of
a court"). However, Petersen contends that the trial judge
misinstructed the jury concerning the evidentiary effect of these
judicially noticed facts.
The judge gave two jury instructions that are pertinent
to Petersen's claim. Jury Instruction No. 4 told the jurors that
they were the ones who must ultimately evaluate the credibility and
effect of all evidence, including judicially noticed facts:
[E]vidence is presented to you because it is
the jury's exclusive duty to decide what facts
of this case have been proved beyond a
reasonable doubt and to apply the appropriate
law to those facts. ...
The court will rely on you to determine
the facts. This must be done ... solely from
a fair consideration of the evidence presented
to you. There are five sources from which
evidence may be presented to you: (1) the
sworn testimony of witnesses ... ; (2) all
exhibits admitted into evidence ... ; (3)
facts, if any, admitted to or stipulated to by
the attorneys; (4) all facts, if any, of which
the court takes judicial notice; and (5) the
presumptions stated in these instructions.
Jury Instruction No. 23, however, prescribed a more limited role for
the jury with regard to certain facts:
I have told you that it is up to you to decide
what evidence you believe and the weight to be
given [that evidence]. However, you must take
as true the facts that the parties have agreed
on and the facts that I have told you the law
requires you to accept. It is for you to
decide how these facts fit together with the
evidence in the case and how much weight to
give these facts.
At the close of the evidence, the judge distributed her proposed
jury instructions so that the parties could review them. When the
judge asked whether there was any objection to Instruction 23, both
the prosecutor and the defense attorney answered "no".
Petersen concedes that he did not object to Instruction
23. Nevertheless, Petersen contends that the trial judge committed
plain error by giving this instruction; he argues that this
instruction told the jurors that they must accept judicially noticed
facts as true.
Alaska Evidence Rule 203(c) establishes two different
rules for judicially noticed facts. In civil cases, "the court
shall instruct the jury to accept as conclusive any fact judicially
noticed". However, in criminal cases, "the court shall instruct the
jury that it may, but it is not required to," accept judicially
noticed facts. This court has held that, even in the absence of an
objection, a trial judge's violation of this rule (by telling a
criminal jury that they are bound by judicially noticed facts)
constitutes plain error. Rae v. State, 884 P.2d 163, 166-67 (Alaska
App. 1994).
Here, however, we do not find plain error. The trial
judge never explicitly told the jurors that they were bound to
accept judicially noticed facts. Rather, Instruction 23 told the
jurors that they were bound to accept "facts that the parties have
agreed on and the facts that I have told you the law requires you
to accept". Under this instruction, there were two categories of
facts that the jury was bound to accept: any facts to which the
parties stipulated, and any other facts that the judge expressly
told the jurors they were required by law to accept.
The parties did not stipulate to the facts surrounding
Petersen's probation. (It was this lack of a stipulation that led
the court to take judicial notice.) And even though, during trial,
the judge announced that she was taking judicial notice of the facts
surrounding Petersen's probation, the judge never instructed the
jurors that judicially noticed facts were the type of facts that
"the law require[d] [them] to accept".
Lawyers familiar with the concept of judicial notice, and
familiar with the role judicial notice plays in a civil trial, might
interpret the phrase "facts ... the law requires [the jury] to
accept" as a reference to judicially noticed facts. However, this
connection would not be apparent to a jury of lay people. Moreover,
the record in Petersen's case indicates that Petersen's attorney did
not draw this connection. Even though the defense attorney
vociferously challenged the State's efforts to introduce evidence
of Petersen's status as a probationer and Petersen's conditions of
probation, and even though he challenged the court's decision to
take judicial notice of these facts, he did not object to
Instruction 23. While one could argue that Instruction 23 was
potentially subject to erroneous construction, there was no obvious
error in the instruction.
Further, the potential for error was all buttions, the
jurors asked the court to provide them with a copy of the district
court order of April 7, 1993 that placed Petersen on probation.
After hearing the positions of the parties, Superior Court Judge
Peter A. Michalski (acting in the absence of the original trial
judge) told the jurors that the order they sought was not part of
the evidence. Judge Michalski then re-quoted the text of the
judicial notice concerning Petersen's probation, and he specifically
directed the jurors to consult Instruction 4. As noted above,
Instruction 4 correctly informed the jurors that it was "the jury's
exclusive duty to decide [the] facts of this case" based on the
evidence, and that judicially noticed facts were simply one portion
of the evidence that the jury could consider. (EN12) Given the
wording of the original instructions, and given Judge Michalski's
answer to the jurors, Petersen has not shown that the potentially
ambiguous wording of Instruction 23 constituted an obvious or
substantially prejudicial error. Massey v. State, 771 P.2d 448, 453
(Alaska App. 1989).
For these reasons, we affirm Petersen's conviction.
Petersen's Sentence Appeal
Petersen's crime, first-degree stalking, is a class C
felony with a maximum penalty of 5 years' imprisonment. AS 11.41.-
260(c); AS 12.55.125(e). Superior Court Judge Karen L. Hunt
sentenced Petersen to 5 years with 2 years suspended (3 years to
serve). Petersen contends that this sentence is excessive.
Petersen was a first felony offender. Under AS 12.55.-
125(k) and Austin v. State, 627 P.2d 657 (Alaska App. 1981), as
construed in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.
1983), Petersen could not receive 3 years to serve unless the
sentencing judge found one or more of the aggravating factors listed
in AS 12.55.155(c) (or unless the judge found extraordinary
circumstances under AS 12.55.165). Judge Hunt found two aggravating
factors: (c)(9) þ that Petersen knew that his offense involved more
than one victim, and (c)(21) þ that Petersen had a history of
repeated criminal violations similar in nature to his present
offense.
Petersen argues that the record does not support
aggravator (c)(21) (repeated similar criminal violations). He
acknowledges that he has two prior convictions involving R.H. þ the
1992 trespass conviction and the 1993 assault conviction þ but he
points out that he received a suspended imposition of sentence for
the trespass conviction and this conviction was ultimately set
aside. Petersen argues that a set-aside conviction should not be
counted toward his criminal history under aggravator (c)(21).
This court has consistently interpreted aggravator (c)(21)
to encompass all of a defendant's prior crimes, whether or not the
defendant was prosecuted for those crimes. See Turpin v. State, 890
P.2d 1128, 1132 (Alaska App. 1995); Fagan v. State, 779 P.2d 1258,
1260 (Alaska App. 1989). Thus, the sentencing court would have been
authorized to consider Petersen's 1992 trespass at R.H.'s house even
if Petersen had never been prosecuted for this offense. We see no
rationale for interpreting AS 12.55.155(c)(21) differently when the
defendant has been convicted of a prior crime, even when the
conviction is ultimately set aside under the provisions of a
suspended imposition of sentence. We therefore uphold Judge Hunt's
finding of aggravator (c)(21).
Petersen also argues that the record does not support
aggravator (c)(9) (that he knew the offense involved more than one
victim). Judge Hunt found aggravator (c)(9) because several of
Petersen's acts of stalking also involved R.H.'s husband and R.H.'s
children. Petersen admits that other members of R.H.'s family were
present during some of his contacts with R.H., but he argues that
the contacts involving other family members all occurred before the
effective date of the stalking statute (that is, these were not acts
for which Petersen could be charged). Petersen argues that, in the
absence of clear evidence that other family members were present
during his contacts with R.H. after May 28, 1993, the State could
not establish aggravator (c)(9).
The record does not support Petersen's claim that all of
his contacts with R.H. after May 28, 1993 involved R.H. alone. The
State points out that R.H.'s children were with her on July 3, 1993,
when Petersen approached R.H. twice at the Bear Paw Festival. The
State also points out that R.H.'s children were with her ficer Shore
in the family's driveway. (EN13) Moreover, the sentencing record
contains evidence that R.H.'s children were fearful for their
mother's safety, and for their own safety, because of Petersen's
actions.
Under AS 11.41.270(b)(1), the "course of conduct" that
constitutes the actus reus of stalking is defined as "repeated acts
of nonconsensual contact involving the victim or a family member".
(Emphasis added) The record is sufficient to support findings that
R.H.'s children were present during more than one of Petersen's
post-May 1993 acts of nonconsensual contact with R.H., that
Petersen's conduct placed the children in fear for their own safety
or the safety of their mother, and that Petersen acted with
recklessness concerning this result.
Nevertheless, aggravator (c)(9) is troublesome when
applied to stalking prosecutions. When a person is stalked, the
stalking almost inevitably affects the person's family, close
friends, and co-workers. As these other people become aware of the
stalking and come to realize that their association with the
targeted victim puts them in the stalker's path, they may
justifiably become concerned for their own safety as well as for the
safety of the targeted victim. If these other people are considered
victims of the stalking, then stalking will rarely (if ever) involve
only one victim. (EN14)
One portion of the stalking statute seems to indicate that
family members, friends, and co-workers are not to be considered
"victims" of the stalking. AS 11.41.270(b)(4) defines "victim" as
a person who is the "target" of repeated acts of nonconsensual
contact. On the other hand, AS 11.41.270(a) declares that stalking
is committed when a defendant, through repeated acts of
nonconsensual contact, "recklessly places another person in fear of
death or physical injury". If "another person" is read to mean "any
other person", then a defendant who targets one person but whose
conduct places many people in fear of injury or death may
conceivably have committed many counts of stalking. Compare Cooper
v. State, 595 P.2d 648, 649-650 (Alaska 1979) (a defendant who
commits one assaultive act can be convicted of a separate count of
assault for each person placed in fear).
We find that we do not need to resolve these issues in
Petersen's case. Even assuming that R.H. was Petersen's only victim
for purposes of the stalking statute, or even assuming that stalking
almost inevitably involves other victims (so that aggravator (c)(9)
should have received little or no weight, see Pusich v. State, 907
P.2d 29, 39 (Alaska App. 1995)), Petersen's sentence is amply
justified without reference to aggravator (c)(9). We are convinced
that, even if the sentencing court erred in finding aggravator
(c)(9), this error had no appreciable effect on Petersen's sentence.
As discussed above, Judge Hunt found a separate
aggravator, (c)(21), based on Petersen's two prior crimes against
R.H. (trespass in 1992, assault in 1993). This aggravating factor
authorized her to consider sentences above the Austin limit.
Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983).
As this court has repeatedly stated, the presence of
aggravating factors does not necessarily justify a substantial
departure from the presumptive terms established by the legislature.
See Pusich, 907 P.2d at 39. By analogy, proof of aggravating
factors does not necessarily call for a sentence above the limit
established in Austin for a first felony offender like Petersen.
Having found aggravator (c)(21), Judge Hunt's next task was to weigh
that factor in light of the sentencing criteria codified in
AS 12.55.005 to determine whether the presence of the aggravator
showed Petersen to be an atypically serious offender or showed his
crime to be more serious than a typical instance of first-degree
stalking. See Juneby v. State, 641 P.2d 823, 833, 835 & n.21
(Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska
App. 1983) (in cases governed by presumptive sentencing, even when
aggravating factors are proved, a sentencing court should be
cautious when making adjustments to the prescribed presumptive term;
any adjustment should be based on the sentencing criteria estab-
lished in State v Chaney, 477 P.2d 441, 443-44 (Alaska 1970)).
In the present case, Petersen's two prior crimes comprise
only a minor aspect of Petersen's long-term assault on R.H.'s
privacy and security. Technically speaking, Petersen stalked R.H.
for only a few weeks (because the stalking statutes did not take
effect until May 28, 1993). However, Petersen terrorized R.H. for
much longer than that.
For more than two years (from the spring of 1991 until his
arrest in July 1993), Petersen hounded R.H.. Peterson followed
R.H., he spied upon her, he unexpectedly confronted her, and one
time he assaulted her (by attempting to ram her car). He intruded
upon her at her home, at her workplace, when she did her shopping,
and when she went out for recreation with family and friends. He
ignored R.H.'s repeated requests to stay away from her, he ignored
a very pointed letter from the Kanady Clinic (quoted in footnote 1
above), and he ignored the conditions of probation imposed on him
in 1992 and 1993. Petersen also failed to follow through with the
psychiatric counseling that he had been ordered to continue as a
condition of probation in 1993.
The record fully supports Judge Hunt's conclusion that
Petersen inflicted two years of psychological violence on R.H.; the
record also fully supports her conclusion that Petersen's prospects
for rehabilitation were "extremely guarded".
Admittedly, Petersen's appeal is this court's first
sentence appeal from a first-degree stalking conviction; we
therefore have no history of first-degree stalking sentences to use
as a point of comparison. However, Petersen's conduct was substan-
tially more serious than the conduct minimally required for
conviction of first-degree stalking, and his prospects for rehabili-
tation are quite poor. We can not say that a sentence of 3 years
to serve is clearly mistaken. McClain v. State, 519 P.2d 811, 813-
14 (Alaska 1974).
Conclusion
The judgements entered against Petersen, Larson, and
Colbry are AFFIRMED.
ENDNOTES:
1. This letter informed Petersen that the Kanady Clinic would "no
longer ... render professional services of any type" to him. The
letter listed the reasons for this action:
As Dr. Kanady and [R.H.] have discussed with
you personally, your obsessive behavior toward
[R.H.] far exceeds the limits of acceptable
conduct on the professional, let alone the
personal level. [Even after you were notified
that] such behavior cannot be condoned, still
you have persisted in your harassment of
[R.H.], not only at [the] Kanady Chiropractic
Clinic but also at [R.H.'s] home, at the
Alaska Athletic Club, even at public places
and in the presence of her family. Your
behavior has caused a serious disruption of
the functions of [the] Kanady Chiropractic
Center and has rendered it impossible for the
center to continue to provide you services.
... In short, Mr. Petersen, stop harassing
the Kanadys and their staff. We have filed
police reports regarding your conduct. If
that conduct should continue, we will have you
arrested.
2. Because E.H. was living with this man, he was a "family member"
as defined in AS 11.41.270(b)(2).
3. In addition, some unlawfully vague statutes may chill the right
of free speech. Id.
4. A statute violates substantive due process when "it has no
reasonable relationship to a legitimate government purpose".
Griswold v. Homer, Opinion No. 4419 (Alaska, October 25, 1996),
slip opinion at 8 (citing Concerned Citizens of South Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska
1974)).
5. AS 11.41.270(b)(3) declares that a "nonconsensual contact" is
any contact that is "initiated or continued without [the other]
person's consent" or any contact that is "beyond the scope of the
consent provided by that person" or any contact that is "in
disregard of that person's expressed desire that the contact be
avoided or discontinued". Because this third clause covers
instances in which the targeted person has previously expressed a
desire to have no further contact, the first clause assumedly
addresses unconsented-to contact that occurs even when the other
person has not previously expressed a desire to be left alone.
6. We note, however, that AS 11.41.270(b)(4) defines "victim" as
"a person who is the target of a course of conduct". Although we
need not decide this point in the present appeals, the
legislature's use of the word "target" suggests that the
defendant's conduct must be consciously directed toward the other
person.
7. See, for example, State v. Gilkey, 826 P.2d 69 (Or. App. 1992),
where the Oregon Court of Appeals upheld a condition of probation
that required the defendant to obtain written permission from a
probation officer or the court before contacting his wife for any
reason. The defendant asserted that this condition of probation
"constitute[d] an excessive infringement on his fundamental right
to associate with his marriage partner", but the court held that
the defendant's record of assaulting and harassing his wife "amply
justified" the condition of probation. Id. at 71.
8. We note that the definitions of third- and fourth-degree
assault potentially raise this same problem. Under AS 11.41.-
220(a)(1)(A) and AS 11.41.230(a)(3), a defendant commits assault if
the defendant recklessly places another person in fear of serious
physical injury (third-degree assault) or imminent physical injury
(fourth-degree assault). Similar to the hypotheticals discussed in
the preceding two paragraphs, one can imagine situations in which
a defendant recklessly places another person in fear of imminent
injury by his conduct, even though the defendant's conduct was not
directed at that other person. However, we are aware of no litiga-
tion in which the assault statutes have been stretched to this
extent.
9. As noted above, Colbry was under two separate no-contact orders
(a domestic violence restraining order and a condition of
probation) that prohibited him from contacting E.H.. Colbry was,
however, permitted to telephone E.H.'s house once each evening,
between 5:00 and 8:00, to speak with his daughter.
10. In McKillop, we were not called upon to interpret the clause
of the harassment statute that forbids a person from making
threatening telephone calls.
11. The State asks us to reconsider Wyatt and DeHart. According
to the State, if we require the victim's fear to be reasonable, a
malevolent person who knows of another person's paranoia or other
unusual susceptibility to fear can torment that other person with
impunity. The State suggests that "stalking defendants are
familiar with and likely to take advantage of unreasonable and
peculiar fears of their victims".
The present appeals do not require us to re-examine Wyatt and
DeHart. We note, however, that under AS 11.81.610(c), when a crime
requires proof that a defendant acted "recklessly" with respect to
a specified result, the crime can also be established by proof that
the defendant acted "intentionally" with respect to that result.
It is arguable that the State could prosecute a defendant for
intentionally placing a non-consenting victim in fear, even when
that fear was unreasonable. But see McKillop, 857 P.2d at 364
(construing AS 11.61.120(a)(4) to require proof that annoyance or
harassment was the defendant's sole intent). It is also con-
ceivable that the legislature could address the State's concerns by
enacting a statute tailored to this situation.
12. We view this instruction as the functional equivalent of the
instruction called for by Evidence Rule 203(c) þ that the jury may
accept judicially noticed facts but is not required to do so.
13. When a defendant's knowledge of a circumstance is at issue,
knowledge of that circumstance is established if the defendant was
"aware of a substantial probability of its existence". See
AS 11.81.900(a)(2). Petersen knew that R.H. had minor children.
While Petersen might not have known to a certainty that he would
encounter R.H.'s children when he came to R.H.'s house on July 18,
1993, the record supports a finding that Petersen was aware of a
substantial probability that R.H.'s children would be with her.
14. We note that AS 11.41.270(b)(2) defines "family member" as:
(A) [a] spouse, child, grandchild, parent,
grandparent, sibling, uncle, aunt, nephew, or niece of
the victim, whether related by blood, marriage, or
adoption;
(B) [a] person who lives, or has previously lived,
in a spousal relationship with the victim;
(C) [a] person who lives in the same household as
the victim; or
(D) [a] person who is a former spouse of the victim
or is or has been in a dating, courtship, or engagement
relationship with the victim[.]
