¶26 (dissenting) — The majority today disregards our prior case law and extensive Court of Appeals precedent distinguishing definitions of terms (which do not create alternate means of committing an offense) from definitions of the crime (which do). But I believe that this is an important distinction to maintain. I would reverse the Court of Appeals and hold that the common law assault definitions create alternative means of committing assault.
Bridge, J.¶27 An alternative means crime is one which allows for the same criminal result to be accomplished in a variety of ways. Most such crimes are defined by statute; in Washington, assault is not. Instead, we look to the common law and define “assault” as either (1) intentional harmful or injurious contact (actual battery); (2) intentionally attempting harmful or injurious contact (attempted battery); or (3) intentionally causing fear and apprehension of imminent, harm in another whether one intends actual harm or not (assault or “fear assault”). State v. Wilson, 125 Wn.2d 212, 217-18, 883 P.2d 320 (1994).
¶28 It is well settled that in an alternative means case a criminal defendant does not have the right to a unanimous jury determination as to the particular means used to carry out a crime. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988). However, in order to safeguard the defendant’s right to a unanimous verdict as to the crime, substantial evidence of each of the relied on alternative means must be presented. Id. But a defendant may not simply point to an instruction or statute that is phrased in the disjunctive in order to trigger a substantial evidence review of her conviction. Likewise, where a disputed instruction involves an alternative that may be characterized as a “ ‘means within [a] means,’ ” the alternative means doctrine does not apply. In re Pers. Restraint of Jeffries, 110 Wn.2d 326, 339-40, 752 P.2d 1338 (1988) (refusing to accept defendant’s claim that *794jury should be additionally instructed on the subalterna-tives of the statutory alternatives at issue).10
¶29 The majority interprets Washington case law as unequivocally holding that definitional instructions do not create alternate means of committing assault. In doing so, it avoids an analysis of the precedential ambiguity that currently exists in the determination of what definitions may constitute alternative means and which do not. We have held that definition statutes actually defining the crime may do so in “terms of alternative means.” State v. Linehan, 147 Wn.2d 638, 648, 56 P.3d 542 (2002) (acknowledging that the statutory definitions of theft create alternative means of committing the crime of theft). Such definitions create an alternative means crime, as opposed to definition statutes that simply explain the alternatives. Id. I would recognize a distinction between definitions which I will call “fundamental” definitions, i.e., those where the definition is the crime, and those which I will call “explanatory” definitions, i.e., those where the definition clarifies terminology or an element of the crime.11 Fundamental definitions may constitute alternative means; explanatory definitions do not.
¶30 Applying this analytical framework here, the common law definitions of “assault” cannot be considered ex*795planatory definitions. Contrary to the assertion of the majority, their purpose goes beyond merely providing detail for the elements of assault. Rather, they are fundamental definitions that identify the very act of assault and do so in alternative ways. Like the definition of “theft” we considered in Linehan, the common law assault definitions create alternative means of committing the crime. Regardless of the degree of assault charged, the defendant’s actions must necessarily fall into one or more of these definitions.12 I would therefore hold that the common law assault definitions are alternative means of committing the crime of assault.
¶31 Such a holding is not only consistent with the distinction we have drawn in our case law between what I have called here fundamental definitions and explanatory definitions, it is also consistent with precedent from the Court of Appeals. In both published and unpublished opinions, Division One has held that the common law definitions of “assault” provide alternative means of committing assault, as has Division Three. See State v. Nicholson, 119 Wn. App. 855, 860, 84 P.3d 877 (2003); State v. Putnam, noted at 122 Wn. App. 1031, 2004 Wash. App. LEXIS 1471, at *5-9; City of Spokane v. White, 102 Wn. App. 955, 964-66, 10 P.3d 1095 (2000); State v. Rivas, 97 Wn. App. 349, 352, 984 P.2d 432 (1999); State v. Trujillo, noted at 87 Wn. App. 1074, 1997 Wash. App. LEXIS 2157, at *7-8; State v. Bland, 71 Wn. App. 345, 352-53, 860 P.2d 1046 (1993); State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988). Simultaneously, Division One has declined to find alternative means cases exist where the defendant presented a “means within a means” or “definition within a definition” argument. See State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638 *796(1999); State v. Strohm, 75 Wn. App. 301, 309, 879 P.2d 962 (1994).
|32 The majority argues that the alternative means doctrine cannot extend to common law definitions but is applicable only where there are statutory alternatives. Majority at 786.1 find this argument unpersuasive. While it is true that alternative means crimes have been recognized by courts where there are statutory alternatives, the alternative means doctrine does not appear in any statutory text; it is a court-made doctrine. See State v. Klimes, 117 Wn. App. 758, 769, 73 P.3d 416 (2003). The majority presents no authority that forecloses the application of the alternative means doctrine to common law alternatives.13
¶33 Accordingly, I would reverse the Court of Appeals and hold that the common law definitions of “assault” constitute alternative means of committing the crime of assault and are thus subject to a substantial evidence review. I dissent.
Sanders, Chambers, and Fairhurst, JJ., concur with Bridge, J.
Recognizing an extension of this limitation to the alternative means doctrine, we have observed that “[d]efinition statutes do not create additional alternative means of committing an offense.” State v. Linehan, 147 Wn.2d 638, 646, 56 P.3d 542 (2002). Like a means within a means, definitions within definitions merely “elaborate upon various terms or words” within a crime. Id. at 648. But we also recognize that statutes defining a crime do provide alternative means of committing theft. Id. at 645.
Thus, I would distinguish our observation in Linehan that “[dlefinition statutes do not create additional alternative means of committing an offense.” 147 Wn.2d at 646. The definitions we considered there were explanatory definitions, not fundamental definitions. As noted elsewhere in Linehan, we do recognize that the definitions of the crime of theft create alternative means of committing theft. Id. at 645. The majority offers Linehan as binding authority for the proposition that the common law definitions of “assault” do not create alternative means. Majority at 785. But the majority cites to dicta in Linehan. Id. (citing Linehan, 147 Wn.2d at 647). The question before us today was not before the Linehan court as it did not address the common law definitions of “assault.” In order to arrive at its conclusion, the majority must not only misread Linehan, but it must also dismiss long-standing precedent from our Court of Appeals. Majority at 787.
For this reason, the majority’s contention that the sole alternative means of committing the crime of assault are contained in the different degrees of assault is unpersuasive. Majority at 784. Without the basic definition or definitions of “assault,” the degrees are meaningless. Moreover, whether the 17 disjunctives contained in the assault statutes constitute alternative means is not a question that has been argued or briefed before this court. Nonetheless, the majority assumes the various disjunctives in the assault statutes constitute the only alternative means of committing assault.
The majority correctly notes that alternative means are a matter of legislative intent but fails to consider that this is true only insofar as alternative means are differentiated from separate offenses. See Schad v. Arizona, 501 U.S. 624, 630-46, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality considered whether Arizona murder statute consisted of alternative means or separate offenses, concluding that it is the province of the legislature to determine when “statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime.”); id. at 636; State v. Arndt, 87 Wn.2d 374, 378-79, 553 P.2d 1328 (1976). In order to determine whether the legislature intended statutory alternatives to describe “a single offense committable in more than one way” or describe multiple separate offenses, we consider several factors. Id. at 378. It is certainly the province of the legislature to determine what is and is not a crime. But where there is a definition which would not in any circumstance be considered a separate offense but may constitute an alternative means of committing the crime, see Linehan, 147 Wn.2d at 648, the Arndt factors are not helpful.