264 P.3d 851
Court of Appeals of Alaska.
Ginnie DAWSON, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10137.
Oct. 21, 2011.

OPINION
MANNHEIMER, Judge.
This case requires us to construe one clause of our disorderly conduct statute, AS 11.61.110—specifically, subsection (a)(5) of the statute, which declares that a person commits disorderly conduct if the person “engages in fighting other than in self-defense”. The precise issue is whether the phrase “engages in fighting” encompasses all instances where one person strikes another—or whether, instead, this phrase is limited to situations where two or more people share a mutual intent to trade blows (or at least attempt to trade blows).

For the reasons explained in this opinion, we conclude that, for purposes of this subsection of the disorderly conduct statute, “fighting” requires a mutuality of intention, and therefore this subsection of the statute does not cover all situations where one person strikes another.

Underlying facts
The Appellant in this case, Ginnie Dawson, was charged with fourth-degree assault under AS 11.41.220(a)(1) for hitting her domestic partner, Patrick Meyer, with her fists and throwing a baking pan at him. To prove this assault charge, the State had to establish that Dawson “recklessly cause[d] physical injury to [Meyer]”.

As used in our criminal code, the term “physical injury” means “physical pain or an impairment of physical condition”. The State alleged that Dawson’s acts of striking Meyer with her fists and with the baking pan constituted fourth-degree assault because this conduct caused Meyer to suffer physical pain.

At trial, Dawson conceded that she struck Meyer, but she contended that she had not caused him physical pain. Meyer took the stand and agreed that he had not suffered pain (other than emotional pain) during the attack.

Based on this testimony, Dawson’s attorney asked the trial judge to instruct the jury on the lesser offense of disorderly conduct as defined in AS 11.61.110(a)(5)—“engag[ing] in fighting other than in self-defense”. The defense attorney argued that if the jury believed Meyer’s testimony that he had not suffered pain, then the State would have proved only that Dawson fought with Meyer—and, thus, disorderly conduct under subsection (a)(5) would be the proper verdict.

The trial judge refused to instruct the jury on disorderly conduct because (1) the judge concluded that “fighting” meant a mutual physical struggle between two or more people, and (2) there was no evidence that Meyer and Dawson engaged in mutual struggle—i.e., no evidence that Meyer intended to fight Dawson, or that he responded with physical force to Dawson’s blows.

The jury convicted Dawson of fourth-degree assault, and Dawson now claims that the trial judge committed error by refusing to instruct the jury on disorderly conduct as a potential lesser included offense.

This Court’s decision in Hedgers v. State

As we have just explained, the primary issue raised in this appeal is whether the phrase “engages in fighting” (as used in subsection (a)(5) of the disorderly conduct statute) includes all situations where one person strikes another, even though there is no mutual combat—i.e., even though the second person does not wish to engage in a physical struggle, and does not respond with force. This Court has already directly addressed and answered this question in an unpublished opinion: Hedgers v. State, Alaska App. Memorandum Opinion No. 4056 (June 2, 1999), 1999 WL 349062.

The defendant in Hedgers was convicted of disorderly conduct under subsection (a)(5) of AS 11.61.110—i.e., for engaging in fighting other than in self-defense—based on evidence that, during a verbal dispute with another woman, she used her knee to kick this other woman in the leg. Hedgers, slip opinion at 1–2, 1999 WL 349062 at *1.

On appeal, Hedgers argued that she was wrongly convicted because “fighting” required mutual combat. This Court rejected Hedgers’s argument. We held that the term “fighting” encompassed any “physical struggle”—more specifically, that it included “those fights that are one-sided due to choice, surprise by the aggressor, or simply the superior ability of a participant.” Hedgers, slip opinion at 2–3, 1999 WL 349062 at *2.

Thus, in Hedgers, this Court rejected the interpretation of “fighting” that Dawson’s trial judge employed in the present case. Instead, Hedgers adopted the interpretation that Dawson proposes: the interpretation that “fighting” includes all instances where one person knowingly strikes another, even though the other person does not wish to fight and does not respond with force.

Given the underlying facts of Dawson’s case, and given the fact that the primary dispute between the parties at Dawson’s trial was whether Meyer suffered physical pain as a result of Dawson’s striking him, it would appear that, under our decision in Hedgers, Dawson was indeed entitled to a jury instruction on the lesser offense of disorderly conduct.

However, for the reasons explained in this opinion, we conclude that we were mistaken in Hedgers when we declared that “fighting” does not require any degree of mutuality. We now hold that the phrase “engages in fighting” encompasses only those situations where the participants share a mutual purpose or understanding that they will trade blows or attempt to trade blows.

The origins of subsection (a)(5) of our disorderly conduct statute

The common law provided criminal penalties for direct assaults or batteries upon another person, but it also provided penalties for people who breached the public peace with violent, tumultuous, or otherwise disorderly conduct, even when that conduct did not constitute a punishable assault or battery.

If a group of people assembled for the purpose of engaging in violent or tumultuous behavior (and then engaged in that behavior), they were guilty of “riot”. This offense (as generally defined) consisted of “planned and deliberate violent or tumultuous behavior involving a confederation of three or more persons”. Most American jurisdictions have enacted statutory versions of the offense of riot.

A lesser common-law crime—“affray”—applied to breaches of the peace by people who had come together in a public place by chance or otherwise innocently, and then a quarrel arose which prompted them to engage in violent or tumultuous behavior. In such circumstances, the participants “[were] not guilty of riot, but of sudden affray only”, because “[the] breach of the peace happened unexpectedly without any previous intention concerning it.” Affray was defined as “a mutual fight in a public place to the terror or alarm of [other] people”.

To constitute an “affray”, the parties’ intention or willingness to fight had to be mutual. If one person unlawfully attacked another, and the other person used force in an effort to defend himself, the instigator was guilty of assault and battery, while the other participant was entirely innocent of crime. In such circumstances, there was no affray.

Moreover, with respect to both of these offenses—riot and affray—the gravamen of the offense was not any injury to persons or property that might ensue, but rather the present breach of the public peace and the attendant risk of terror or alarm that the violent or tumultuous behavior might cause.

As is true with the offense of riot, most American jurisdictions have codified the common-law crime of affray. Sometimes the codified crime is called “affray”, but often state legislatures insert this offense into one of the provisions of their disorderly conduct statutes. The Alaska territorial legislature took this latter approach: they enacted a disorderly conduct statute in 1935 which, among other things, prohibited “tumultuous conduct in any public place or private house to the disturbance or annoyance of any person”. 1949 Compiled Laws of Alaska, § 65–10–3.

Following statehood, this definition was carried forward in former AS 11.45.030, a statute entitled “Disorderly conduct and disturbance of the peace”. As originally enacted (that is, before the 1973 amendments that we describe later), subsection (2) of this statute provided that a person committed disorderly conduct if they:

[were] guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or [were] otherwise guilty of disorderly conduct to the disturbance or annoyance of another[.]

We note that this statute was broader in scope than the common-law crime of affray, in that it applied to tumultuous or disorderly conduct not only in public places but also in private houses.

During the early days of Alaska statehood, various city governments also enacted disorderly conduct ordinances that covered the type of conduct which would have been an “affray” at common law. For example, the Anchorage disorderly conduct ordinance (in its 1970 version) declared, in pertinent part, that it was unlawful “for any person[,] with purpose and intent[,] to cause public inconvenience, annoyance or alarm, or recklessly create a risk [of these things] by … [e]ngaging in fighting or threatening, or in violent or tumultuous behavior”.

But in 1972, in Marks v. Anchorage, 500 P.2d 644 (Alaska 1972), the Alaska Supreme Court ruled that this Anchorage ordinance was unconstitutional—and the supreme court’s decision led to a complete revision of the state disorderly conduct statute.

In Marks, the supreme court concluded that the Anchorage disorderly conduct ordinance was unconstitutionally vague both in its prefatory language (“cause public inconvenience [or] annoyance”) and in its use of the phrase “violent or tumultuous behavior”. Id., 500 P.2d at 645, 652–53. Although, technically speaking, the Marks decision dealt only with the Anchorage ordinance, the Alaska Legislature could see the writing on the wall, so they completely rewrote the state disorderly conduct statute the following year (1973). (The Alaska Supreme Court indeed struck down the pre–1973 version of the state statute in Poole v. State, 524 P.2d 286, 289 (Alaska 1974).)

In the 1973 revision of AS 11.45.030, the phrases “tumultuous conduct in a public place or private house to the disturbance or annoyance of another” and “disorderly conduct to the disturbance or annoyance of another” were replaced by a series of more specific provisions. For purposes of the present discussion, the pertinent clause of this revised, post–1973 version of the disorderly conduct statute is subsection (a)(3). This subsection declared that a person was guilty of disorderly conduct if “in a public or private place” [the person] “challenge[d] another to fight, or engage[d] in fighting other than in self-defense[.]”

In other words, subsection (a)(3) of the post–1973 disorderly conduct statute is the source of the language that is now found in subsection (a)(5) of our current disorderly conduct statute, AS 11.61.110—the statute that we must construe in this appeal.

The treatment of fighting and other breaches of the peace under Alaska’s current criminal code

The Alaska criminal code was completely rewritten in the late 1970s. The drafters of the new criminal code proposed a series of three statutes (all of them contained in Title 11, chapter 61) to cover the general subject of conduct that threatens the peace. See Alaska Criminal Code Revision, Tentative Draft, Part 5 (1978), pp. 78–89. These three statutes were later enacted as AS 11.61.100, AS 11.61.110, and AS 11.61.120.

AS 11.61.100 defines the felony of “riot”. Under this statute, a person commits riot “if, while participating with five or more others, the person engages in tumultuous and violent conduct in a public place and thereby causes, or creates a substantial risk of causing, damage to property or physical injury to a person.”

Moving down in degree of seriousness, AS 11.61.120 defines the misdemeanor of harassment. The pertinent portions of this statute are subsections (a)(1) and (a)(5), which declare that a person commits harassment if the person “insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response”, or if the person “subjects another person to offensive physical contact”.

The first clause of the statute is a codification of the common law. At common law, a person was chargeable with a breach of the peace if the person directed opprobrious or abusive language toward another person with the intent to incite the other person to violence, or under circumstances where the language was likely to provoke immediate violence. The second clause of the statute was intended to cover minor shoves, slaps, or kicks that would not qualify as assaults under AS 11.41.200–230 because they do not inflict “physical injury”. This latter clause was also intended to cover touchings of a sexual nature that would not qualify as sexual assaults or sexual abuse under AS 11.41.410–440.

Finally, AS 11.61.110 defines the class B misdemeanor of “disorderly conduct”. As we have already noted, the pertinent portion of this statute (for purposes of the present appeal) is subsection (a)(5), which declares that a person commits disorderly conduct if, “in a public or private place, the person challenges another to fight or engages in fighting other than in self-defense”. This is simply a reiteration of subsection (a)(3) of the prior statute (as it was rewritten in 1973).

Although disorderly conduct is designated a class B misdemeanor (a class of offense which normally carries a maximum penalty of 90 days’ imprisonment), the legislature has specified that the sentence of imprisonment for disorderly conduct can be no more than 10 days. See AS 11.61.110(c).

Why we conclude that the phrase “engages in fighting other than in self-defense” requires proof of a mutual intention or willingness among the participants

We now return to the issue of statutory interpretation presented in Dawson’s case. Under AS 11.61.110(a)(5), a person commits disorderly conduct if the person “challenges another to fight or engages in fighting other than in self-defense”. The question is whether the phrase “engages in fighting” encompasses any instance where one person strikes another—or whether this phrase applies only to situations where the parties share a mutual intention or understanding that they will exchange blows, or at least attempt to exchange blows.

As we have explained, this statutory language was formulated in 1973, when the legislature rewrote the disorderly conduct statute in response to the supreme court’s decision in Marks v. Anchorage. At that time (i.e., before the enactment of our current criminal code), Alaska law contained a separate statute—former AS 11.15.230—that punished all acts of assault and battery, including all instances where one person unlawfully struck another person.

Former AS 11.15.230 declared that any person who unlawfully assaulted, threatened, or struck another person was guilty of a misdemeanor and subject to imprisonment for up to six months. As our supreme court noted in Rivett v. State, 578 P.2d 946, 948 (Alaska 1978), a person could commit assault and battery under this former statute by throwing “a simple punch [to] the nose, by means of a bare fist”.

Because the crime of “assault and battery” as defined in former AS 11.15.230 already covered any act of unlawfully striking another person, the legislature must have intended to deal with a different social problem when, in 1973, they rewrote the disorderly conduct statute and included a subsection that prohibited “fighting other than in self-defense”.

We believe that the legislature’s intention is explained by the statutory history that we recited in the preceding section of this opinion.

As we have already described, prior to the 1973 amendments prompted by Marks v. Anchorage, Alaska’s disorderly conduct statute prohibited all “tumultuous conduct in a public place or private house to the disturbance or annoyance of another”. This prohibition on “tumultuous conduct” was derived from the common-law crime of affray, which covered any sudden or unplanned breach of the peace by fighting or other tumultuous behavior.

But in Marks, the Alaska Supreme Court struck down a similarly worded municipal disorderly conduct ordinance—in part, because it employed the phrase “violent or tumultuous behavior”. Id., 500 P.2d at 645, 652–53. This prompted the Alaska Legislature to revise the state disorderly conduct statute by deleting the phrase “tumultuous conduct” and substituting more concrete definitions of the prohibited conduct. Among these more concrete definitions were “challeng[ing] another to fight” and “engag[ing] in fighting other than in self-defense”.

Given the fact that this prohibition on “fighting” has its origins in the common-law offense of affray (which required a mutual intent or willingness to fight), and given the fact that a separate existing statute prohibited all batteries, one can infer that the legislature was describing situations of mutual fighting, rather than all situations where one person unlawfully strikes another.

This inference is strengthened by the fact that the phrase “engages in fighting” is immediately preceded by the phrase, “challenges another to fight”. The act of “challenging” another to fight clearly involves daring or inviting someone else to engage in mutual fighting. And because this first clause of subsection (a)(5) employs the word “fight” in this sense of “mutual fighting”, one can infer that the legislature was referring to the same concept—mutual fighting—when they used the phrase “engages in fighting” in the second clause of the statute.

Under the rule of statutory construction known as noscitur a sociis (literally, “it is known by its associates”), we … conclude that the phrase “fighting other than in self-defense” refers to the same type of mutual fighting as the phrase “challenges another to fight”. That is, both phrases refer to a physical struggle or combat among willing participants.

This conclusion is also bolstered by the disparity in the punishment for assault, and even the punishment for harassment, versus the punishment for disorderly conduct. [Misdemeanor assault is punishable up to one year in jail whereas the maximum punishment for disorderly conduct is 10 days.]

[…]

The fact that a person who is found guilty of disorderly conduct for “engaging in fighting other than in self-defense” faces such a minimal penalty compared to the sentences that can be imposed for assault or even harassment suggests to us that the legislature viewed disorderly conduct as a significantly lesser offense. But this view of disorderly conduct would make little sense if “fighting” included all instances where one person unlawfully strikes or offensively touches another person. The disparity in punishment suggests that the legislature took a narrower view of “fighting”—the view that “fighting” referred to instances of fighting between mutually willing participants.

If the legislature viewed “fighting” in this more limited sense, then it would be reasonable for the legislature to impose greater punishments for assault and for harassment (which includes non-consensual offensive touchings, as well as “insults, taunts, and challenges” that are likely to provoke immediate violence). When an assault leads to combat, it will be a combat where one participant is at fault and the other participant is exercising the right of self-defense. And when harassment leads to combat, it will be a combat where one participant is significantly more at fault than the other. In cases of mutual “fighting”, on the other hand, there is no primary offender or victim; this conduct is punished only because the turmoil of the fight could breach or threaten the public peace.

[…]

For these reasons, we conclude that the phrase “engages in fighting other than in self-defense” (as used in subsection (a)(5) of our disorderly conduct statute) does not include one-sided attacks of one person upon another—i.e., acts punishable as assault, or acts punishable as harassment under AS 11.61.120(a)(5) (subjecting another person to offensive physical contact). Rather, the phrase “engages in fighting other than in self-defense” is limited to altercations where the parties share a mutual intent or willingness to fight.

It is possible that in some cases where a defendant is charged with assault, the evidence may give rise to a reasonable possibility that the defendant is not guilty of assault but rather of the lesser crime of disorderly conduct under the “engages in fighting” clause of AS 11.61.110(a)(5). It is also possible that the evidence may give rise to a reasonable possibility that the defendant is guilty of the lesser crime of harassment under either AS 11.61.120(a)(1) (insulting, taunting, or challenging another person in a manner likely to provoke an immediate violent response) or AS 11.61.120(a)(5) (subjecting another person to offensive physical contact).

If the government has not already charged these lesser crimes as alternative offenses, and if the evidence presented at trial is sufficient to support the conclusion that the defendant is not guilty of assault but is instead guilty of one or (conceivably) both of these lesser offenses, then either party may request a jury verdict on these lesser offenses. In such cases, the jurors should be instructed that they cannot return a verdict on a lesser offense unless they have reached unanimous agreement that the defendant should be acquitted of the charged assault.

[…]
Conclusion
The judgement of the district court is AFFIRMED.