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PETERSEN v. STATE12/20/1996
ed 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 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 — 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 — 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 of argument that the definition of stalking potentially presents serious constitutional issues at its 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. 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 speake
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