dissenting.
For essentially the reasons advanced by Chief Judge Bryner in James v. State, 671 *1168P.2d 885 (Alaska App.1983), I dissent from the court’s opinion.
In my view, the superior court’s jury instructions may have created a situation where the jury unanimously agreed only upon the elements constituting third degree assault, and yet convicted James of the crime of assault in the first degree. As the Court of Appeals noted, the superior court instructed the jury as to the alternative definitions of first-degree assault contained in AS 11.41.200(a)(1) and AS 11.41.-200(a)(3), permitting the jury to return a general verdict convicting James of assault “without necessarily agreeing on the definition under which his guilt was determined.” After analyzing the alternative definitions which were given the jury, the Court of Appeals concluded that “these two provisions require proof of essential elements that are substantially different.” 1
Concerning the significance of the foregoing, the Court of Appeals, in my view, correctly reached the following conclusion:
The differences in intent in the alternative statutory provisions might not, standing alone, be significant, since a finding of specific intent to inflict serious injury would encompass extreme indifference to the value of human life. See AS 11.81.610(c). Similarly, the difference in the extent of injury required would not, by itself, be significant, since a finding of serious physical injury would necessarily include a finding of physical injury. See, e.g., Christie v. State, 580 P.2d 310, 322 (Alaska 1978). However, taken together these differences are significant. It is possible that the jury unanimously agreed only that James stabbed Druck under circumstances manifesting an extreme indifference to human life and that he inflicted some physical injury. Yet these findings would suffice to constitute no more than an assault in the third degree, a class A misdemeanor.
Given the significant differences between the essential elements of the two alternative statutory theories, we must conclude that the trial court’s failure to require a separate verdict for each theory created an impermissible risk that the jury’s verdict would not reflect unanimous agreement as to all material elements of either AS 11.41.200(a)(1) or AS 11.41.200(a)(3). (Footnote omitted.)2
Since I do not view the superior court’s questioned instructions as harmless error I would affirm the Court of Appeals’ reversal in this case.3
. James v. State, 671 P.2d 885, 891 (Alaska App.1983).
. Id. at 892.
. Regarding the harmless error issue, I do not believe the doctor’s testimony that over 70% of those who suffer similar injuries die is conclusive on the question of whether Druck himself suffered a serious physical injury. Perhaps many of the 30% who did not die never experienced any serious difficulties at all. On that evidence alone, I doubt the jury could even conclude beyond a reasonable doubt that serious injury had occurred. And here, the question is, or should be, whether the jury could not possibly have reached any other conclusion. Even if the state's evidence was sufficient to support such a finding, the jury did not have to accept it.