concurring.
I agree with the opinion of the court that Judge Ilsley did not err in refusing to instruct Dawson's jury on the lesser included offense of disorderly conduct. But I disagree with the court's departure from our former decision in Hedgers v. State.1 I also disagree with the court's interpretation of AS 11.61.110(a)(5), the subsection of the disorderly conduct statute that makes it unlawful to "engage in fighting other than in self-defense."
The Hedgers case arose from an altercation in a parking lot. Christina Hedgers became upset with Sony Schibalski because of Schibalski's cautious driving. Hedgers yelled obscenities at Schibalski (apparently after she delayed turning left from the Parks Highway into a supermarket parking lot). Schibalski then approached Hedgers's parked car and challenged her behavior. Hedgers "yelled more obscenities at Schibal-ski, bumped her in the chest, and kicked Schibalski's leg with her knee."2 Hedgers was ultimately charged with disorderly conduct for "engaging in fighting other than in self-defense."
In a court trial before District Court Judge Peter G. Ashman, Hedgers argued that her conduct did not meet the definition of "fighting" in the disorderly conduct statute. She also argued that her use of force was justified in self-defense. Judge Ashman rejected both arguments. He then convicted Hedgers of disorderly conduct.
On appeal, Hedgers renewed her claim that her conduct did not fall within the definition of "engaging in fighting other than in self-defense." She argued that this definition of fighting required proof of "mutual, pugilistic combat." A majority of this court disagreed. We explained:
[The common usage of fighting is "to take part in a physical struggle or battle[.]" This definition is not as narrow as the definition promoted by Hedgers. And Hedgers's definition would exclude those "fights" that are one-sided due to choice, surprise by the aggressor, or simply the superior ability of a participant.3
It seems clear to me that Hedgers was correctly decided. Hedgers involved a minor altercation in a parking lot. It is not entirely clear, but it appears that Schibalski parked her car near Hedgers, perhaps confining her, and confronted Hedgers about her behavior.4 At trial, Hedgers defended primarily on the ground that she struck Schibalski in self-defense. But Hedgers argued in the alternative that there was no fight.5 I do not believe the legislature intended a defendant to be acquitted in this cireamstance if the State failed to prove that the parties shared a mutual intent to fight.
I agree with the majority that the legislature intended this subsection of the disorderly conduct statute to criminalize fighting in situations in which the government could not prove assault because the parties willingly agreed to mutual combat. But, as demonstrated by the facts of Hedgers, just because the legislature intended to criminalize mutual combat does not mean it intended to limit the offense to situations where the State could prove mutual fighting.
It will often be extremely difficult to prove that an altercation involved a mutual fight. Does it matter who started the altercation? Would it make a difference if the victim fought back or just tried to keep from being hit? The plain language of the disorderly conduct statute appears to answer these questions. If you engage in a fight, including *865a fight in which both parties are willing participants, you are guilty of disorderly conduct unless you acted in self-defense. This court had it right in Hedgers. The definition of "fighting" does not "exclude those 'fights' that are one-sided due to choice, surprise by the aggressor, or simply the superior ability of a participant." 8
I agree, however, with the court's resolution in the present case. Ginnie Dawson was charged with assault in the fourth degree for hitting her husband, Patrick Meyer, with her fists and throwing a baking pan at him, "recklessly causing physical injury to [Meyer]." At trial, Dawson conceded that she struck Meyer, but Meyer testified that he suffered no pain from the assault. Dawson's attorney asked Judge Ilsley to instruct the jury on the lesser offense of disorderly conduct for "engagling] in fighting other than in self-defense."
6. Id. at *1.
Judge Ilsley refused to instruct the jury on disorderly conduct because there was no evidence that Meyer responded to Dawson's assault. She concluded that there was no evidence of a fight. Judge Ilsley had seen the evidence in the case and she concluded that there was no evidence of an altercation. Furthermore, she could have concluded that the jurors might have been confused by an instruction requiring them to find that there was some sort of fight when there was no evidence of a fight. I therefore agree with the opinion of the court that Judge Ilsley did not err in refusing to instruct the jury on the lesser offense of disorderly conduct.
. Mem. Op. & J. No. 4056, 1999 WL 349062 (Alaska App. June 2, 1999).
. Id. at *1.
. Id.
. Id. at *1-2.
. Id.