Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge KOSSLER.

A jury convicted Michael Theodore Brown Jr. of second-degree assault, a felony, and four counts of misdemeanor assault for strangling and hitting Amanda Wolfe. Brown challenges his felony assault conviction, arguing that the provision of the second-degree assault statute under which he was convicted is unconstitutionally vague. We reject this claim. Even assuming the statute might be vague as applied in other circumstances, Brown's conduct in strangling Wolfe clearly fell within the core of the statute's prohibitions.

Brown also argues that the superior court should have granted his motion for a mistrial because the jury initially returned inconsistent verdicts. He argues that the superior court did not conduct an adequate inquiry into the reasons for the inconsistency. For the reasons explained below, we conclude that the superior court did not abuse its discretion in concluding that a mistrial was not warranted under the facts of this case.

We accordingly affirm the judgment of the superior court.

Facts and proceedings

Brown and Wolfe had been in an on-and-off relationship for six years, had a child together, and were engaged to be married. After Wolfe learned that Brown was married to another woman and had recently had a child with his wife, the couple decided to separate.

On the morning of June 7, 2009, Brown went to Wolfe's apartment where she lived with her three children, and he woke her by knocking on her bedroom window. Brown said he had come to collect some of his property, and Wolfe let him into the apartment. Brown gathered some of his belongings and then asked Wolfe if he could borrow her car. Wolfe said no. Brown became angry and slammed Wolfe's face against the wall. Wolfe handed over her car keys, and Brown left. Wolfe went to the shower to collect herself, but while she was in the shower she heard knocking at the front door. Brown had returned to get more of his property. Wolfe let Brown into the apartment, and the two got into a heated argument. Wolfe testified that she asked Brown whether it "made him feel like a man" to shove her against the wall.

At this point, the two were shoving each other, and Brown punched Wolfe in the stomach so hard it knocked the air out of her. Wolfe fell onto the bed. Wolfe later told the police that Brown put his hands around her neck and "chok[ed] the shit" out of her. Brown eventually let go, but it was several minutes before Wolfe could breathe normally.

Brown eventually got up from the bed, and Wolfe decided to ride in the car with him as far as her mother's house, which was two blocks away. Things escalated again when Wolfe realized Brown was not driving directly to her mother's residence. Brown told Wolfe that he wanted to talk, but Wolfe wanted to go to her mother's house. Wolfe began to panic. Wolfe attempted to open the car door, but Brown held her by her hair and arm, which caused an injury to Wolfe's arm. Wolfe testified that she and Brown were both fighting and that she was hitting Brown. At some point Brown yelled, "sit back, bitch," and struck Wolfe in the face with the back of his hand, causing her to bleed.

In the meantime, Wolfe's older daughter called Wolfe's mother and sister to tell them that Wolfe was on her way to their house. Wolfe's daughter was frantic and told Wolfe's sister that Wolfe and Brown had been fighting and that Wolfe might be hurt. After waiting for a time, Wolfe's mother and sister drove around in an attempt to locate Wolfe's car. When they saw Wolfe's car, Wolfe's mother began honking the horn to get Brown to stop. Brown eventually pulled over and stopped the car, and Wolfe got out. Brown then left the area in Wolfe's car.

Wolfe's family called the police, and Wolfe went to the hospital. Wolfe was interviewed by a police officer and examined by a forensic nurse. Wolfe told the officer and the nurse that Brown strangled her, and the nurse's examination corroborated that allegation.

A week after the incident, Fairbanks Police Officer Max Lambert interviewed Wolfe. Lambert took photographs of a slight bruise on Wolfe's left cheek and "a pretty big bruise" on Wolfe's right arm.

The State charged Brown with three counts of fourth-degree assault (for hitting and pushing Wolfe) and one count of second-degree assault (for strangling Wolfe). At his trial on those charges, Brown admitted the fourth-degree assaults, but he denied strangling Wolfe.

After a grant of immunity from prosecution, Wolfe recanted her statement to the police that Brown had strangled her. She testified that she lied to the police because she was angry at Brown and wanted to get him into trouble.

The jury convicted Brown of all charges. He appeals.

Why we reject Brown's claim that the definition of "dangerous instrument" in AS 11.81.900(b)(15)(B) is void for vagueness

The second-degree assault statute makes it a crime to intentionally cause physical injury to another person "by means of a dangerous instrument." Under AS 11.81.900(b)(15)(B), a "dangerous instrument" is defined to include "hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth."

Brown claims that this definition of "dangerous instrument" is unconstitutionally vague. He points out that the terms "impede," "pressure," and "obstructing" are not defined by statute, and argues that the average person has no guidance in interpreting the terms. He contends that the definition could be construed broadly to include bruising on the neck (which might impede normal circulation), or a slap to the nose or mouth (which might impede normal breathing).

A statute is unconstitutionally vague if "(1) it does not give adequate notice of the prohibited conduct, or (2) its language is so imprecise as to encourage arbitrary enforcement."1 But a criminal defendant whose conduct falls squarely within the prohibitions of a statute cannot succeed in a vagueness challenge based on a claim that the statute might provide inadequate notice in some other circumstance. This Court and the Alaska Supreme Court have repeatedly stated that "the possibility of difficult or borderline cases will not invalidate a statute where there is a hard core of cases to which the ordinary person would doubtlessly know the statute unquestionably applies."2

Wolfe told the police that Brown "chok[ed] the shit" out of her and that after Brown stopped strangling her, it was several minutes before she could breathe normally again. These actions clearly fell within the "hard core" of the conduct defined in AS 11.81.900(b)(15)(B).

Brown argues that the jury might have believed Wolfe's trial testimony recanting that she had been strangled, and instead convicted Brown of second-degree assault based on the evidence that Brown grabbed the back of Wolfe's neck in the car. But even if the jury concluded that Brown bruised Wolfe's neck in this manner, nothing in the record suggests that this would have led the jury to convict Brown of second-degree assault for that conduct. The prosecutor repeatedly told the jury that the second-degree assault charge was based on Brown's conduct in putting his hands around Wolfe's throat and squeezing, making it difficult for her to breathe. And the defense attorney specifically argued — with no disagreement from the State — that Brown could not be convicted of second-degree assault for grabbing the back of Wolfe's neck.

Brown also makes the conclusory claim that the definition of "dangerous instrument" in AS 11.81.900(b)(15)(B) is so vague that it invites arbitrary or selective enforcement. But to invalidate a statute on this ground, the defendant must offer evidence of an actual history of arbitrary and capricious enforcement, or the statute must be so conflicting and confusing that arbitrary enforcement is inevitable.3 Brown has not asserted a history of arbitrary or selective enforcement in the prosecution of second-degree assault by strangulation. Nor has he established that the statute on its face is so conflicting and confusing that arbitrary enforcement is inevitable.

We conclude that AS 11.81.900(b)(15)(B) puts an ordinary person on notice that strangling a person until they have difficulty breathing constitutes the use of a "dangerous instrument." Because Brown's conduct fell within the core of the statute's prohibitions, we reject his claim that the statute is unconstitutionally vague.

Why we conclude that the superior court did not abuse its discretion in denying Brown's motion for a mistrial

The jury received instructions with respect to the second-degree assault charge and the lesser-included offense of third-degree assault. Both of these offenses require proof that the defendant used a dangerous instrument (in this case, the hands), but second-degree assault requires proof of intent to cause physical injury, while third-degree assault only requires proof of recklessness.4

The court instructed the jury that it could deliberate on the second- and third-degree assault charges "in any order you wish." But the court also instructed the jury "not to return a verdict on any lesser included offense unless you already have reached a unanimous verdict of not guilty as to the greater offense."

Despite these instructions, the jury returned a "guilty" verdict on the greater charge of second-degree assault, and a "not guilty" verdict on the lesser-included offense of third-degree assault — in other words, the jury disregarded the court's instruction not to reach a verdict on the lesser offense unless it found Brown not guilty of the greater offense. Moreover, the resulting verdicts were inconsistent, because if Brown was guilty of second-degree assault, he was necessarily guilty of the lesser-included offense of third-degree assault.

In the superior court, Brown's attorney argued that these inconsistent verdicts warranted a mistrial. The court declined to order a mistrial. Instead, the court re-instructed the jury on the proper procedure for handling a lesser-included offense. The court then provided the jury with blank verdict forms and sent the jury back to deliberate.

The jury again returned a verdict finding Brown guilty of second-degree assault, but this time the jury left blank the verdict form on the lesser-included offense. The court then polled the jury, and each juror individually confirmed that all four verdicts were correct.

Before the court excused the jury, the court asked the jury foreperson whether there was "any explanation [he] would like to put on the record as to any confusion." The foreperson indicated that the initial confusion related to the third-degree assault verdict form. He explained that he had mistakenly selected the "not guilty" box on the verdict form for third-degree assault because it "was the reckless [count], and [the second-degree assault verdict form] was the intent [count], so it was confusing. But guilty on . . . all four counts is what it is."

Brown renewed his motion for a mistrial, and the court invited additional briefing and held a hearing on the motion. Following that hearing, the superior court found that the jury had unanimously agreed that Brown was guilty of the greater offense of second-degree assault, and it again denied the motion for a mistrial.

On appeal, Brown argues that once the court invited the jury foreperson to explain the confusion underlying the jury's earlier inconsistent verdicts, the court had a duty to continue that inquiry until any ambiguity in the foreperson's remarks was fully resolved. The State argues on appeal that no inquiry was necessary after the jury was polled.

Alaska Evidence Rule 606(b) normally bars a trial judge from questioning jurors after they return a verdict "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon [any] juror's mind or emotions as influencing the juror to assent to or dissent from the verdict[,] . . . or concerning the juror's mental processes in connection therewith." But in Davidson v. State, we explained that Evidence Rule 606(b) does not prohibit the court from asking the jurors to clarify what exactly their verdict was — so long as the jurors are not asked to justify the verdict or explain their deliberative process.5

Here, after the jury returned its initially inconsistent verdicts, the superior court re-instructed the jury to reach a verdict on the lesser-included offense of third-degree assault only if it found Brown "not guilty" of second-degree assault,6 and the court sent the jury back to deliberate with blank verdict forms. The jury again convicted Brown of second-degree assault, but this time the jury returned no verdict on the lesser-included offense, consistent with the court's instructions. The judge then polled the jurors, and the polling reflected that this was indeed their verdict.

Given these facts, the superior court correctly denied Brown's motion for a mistrial.

Conclusion

We AFFIRM the judgment of the superior court.