concurring.
I agree with my colleagues that Cronce could not properly be convicted of both second- and third-degree assault under the facts of this case. I write separately because my analysis of the case is a little different from the analysis presented in the lead opinion.
In answering the question of whether Cronce could properly receive separate convictions for second-degree assault and third-degree assault, my colleagues apply a constitutional analysis: they conclude that separate convictions are barred by the double jeopardy clause of the Alaska Constitution as construed by our supreme court in Whitton v. State, 479 P.2d 302 (Alaska 1970). I do not believe that a constitutional analysis is required. Rather, the question is one of substantive criminal law — an issue of statutory interpretation and legislative intent.
The double jeopardy doctrine announced in Whitton — the doctrine that our constitution authorizes the judiciary to make policy decisions about how many separate convictions are allowed in a given situation — has been undercut by more recent decisions of the United States Supreme Court and the Alaska Supreme Court. As the United States Supreme Court declared in Missouri v. Hunter, when the question is whether a defendant may lawfully be subjected to multiple punishments for a single criminal act or a single course of criminal conduct, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing more punishment than the legislature intended”.1
The Alaska Supreme Court acknowledged this principle of federal double jeopardy law in Todd v. State, 917 P.2d 674, 677-78 (Alaska 1996), a case that raised the issue of whether separate punishments can lawfully be imposed for both the offense of felony murder and the underlying felony.
It is true that, after our supreme court acknowledged the rule announced in Missouri v. Hunter, the supreme court then separately analyzed the double jeopardy issue under the Whitton rule (see Todd, 917 P.2d at 681-83) — thus implying that the Whitton analysis requires Alaska courts to consider something other than legislative intent when resolving an issue of double punishment. But a careful reading of the supreme court’s opinion — in particular, the section in which the court analyzed the double jeopardy issue under Whitton — reveals that the court resolved the issue in exactly the same way that federal courts would resolve it under Missouri v. Hunter. That is, the supreme court looked to the Alaska Legislature’s intent.
The supreme court couched its decision as a ruling that, when a defendant is charged with felony murder, the defendant’s underlying felony is not a lesser included offense of the murder charge. Todd, 917 P.2d at 682. However, the court openly acknowledged that, under Alaska’s test for greater and lesser included offenses, these two offenses do indeed stand in the relationship of greater offense and lesser included offense. Id. The supreme court then declared that, notwithstanding this fact, “felony murder [is] a distinct area of the criminal law [that is] not governed by [the] traditional lesser-included[-]offense analysis”. Id.
How did the court explain this conclusion? The court declared that “[the] lesser-included offense analysis [applies to] offenses with overlapping elements ... [where] it is not clear whether the legislature intended [that] the defendant be punished under both statuses]_” Id. And, in the case of the felo*573ny-murder statute, “the intent of the legislature to allow multiple punishments is clear.” Id.
In other words, the Whitton analysis that the supreme court applied in Todd hinged on legislative intent — the same test that federal courts employ under Missouri v. Hunter.
Based on Hunter and Todd, I believe that the primary question to be asked in the present ease is this: In circumstances where a defendant approaches a victim in a threatening manner, the victim perceives the threat, and then the defendant carries out the threat by attacking the victim and inflicting injury, did the Alaska Legislature intend to permit the State to convict the defendant of separate counts of assault — one conviction for the threatening conduct that immediately preceded the physical assault, and the other conviction for the physical assault itself?
Allowing two convictions in this situation is not a traditional approach. Normally, if the physical attack is actually launched (i.e., if the defendant moves beyond threatening conduct), the immediately preceding threat is seen as merely a preliminary step in the attack, and separate convictions are not imposed.
For example, in Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981), the supreme court held that a defendant could not be separately convicted of both an assault with intent to commit rape and the completed rape arising from the same assault. Although the supreme court portrayed its decision as an application of the double jeopardy rule announced in Whitton, the decision in Tuckfield appears to be a straightforward application of the rule now codified in AS 11.31.140(c) — the rule that “[a] person may not be convicted on the basis of the same course of conduct of both [an attempt and] the crime that is the object of the attempt”.
This Court reached the same result in Tookak v. State, 648 P.2d 1018, 1023 (Alaska App.1982), where we concluded that the defendant could not be convicted of both assault with intent to commit rape and the completed rape when the assault and the completed rape were merely separate stages of one continuous assault culminating in the rape of the victim.
The State argues that allowing two convictions in Cronce’s case (and other analogous cases) makes sense because the two convictions would reflect a vindication of separate societal values: first, that a person should be free from fear; and second, that a person should not be injured.
It is true that one might draw a distinction between the two stages of the assault in this case: the first stage being the instilling of fear during the chase, the second stage being the successful capture of the victim and the completion of the attack. Conceivably, the legislature might wish to divide these two stages of the continuous assaultive act into separate offenses, as the State now proposes. It is also conceivable that any such legislation would raise constitutional issues. But for now, the question is one of legislative intent: whether, under our current assault statutes, the Alaska Legislature has already authorized separate convictions for the two stages of a continuous act of assault like the one in this case.
As I noted earlier, allowing two convictions in situations like this is not a normal or typical resolution of the matter. The State is essentially arguing that anyone who physically attacks another person will commit two separately punishable assaults if the victim perceives (no matter how fleetingly) that the attack is coming. There is nothing in the legislative commentary to Alaska’s assault statutes (AS 11.41.200-230) suggesting that the legislature intended to adopt this nontraditional approach.
Accordingly, I conclude that, in situations like the one presented here, defendants can not be separately convicted and punished for (1) instilling fear in their victims by threatening to attack them, and then (2) completing the attack. I reach this conclusion as a matter of statutory interpretation and substantive criminal law, rather than under a double jeopardy analysis.
. 459 U.S. 359, 365-66, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).