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PETERSEN v. STATE12/20/1996
642 A.2d 90, 98-99 (1993), People v. Bailey, 167 Ill.2d 210, 212 Ill.Dec. 608, 617-18, 657 N.E.2d 953, 962-63 (1995), and State v. Bryan, 259 Kan. 143, 910 P.2d 212, 217-21 (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) ("where 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.").
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 — 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.
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. " 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. 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.
Th
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