I write separately to more fully explain certain aspects of our decision: the elements of the crime of coercion, the potential requirement that assaultive conduct be directed at the victim, and the scope of appellate review when the alleged actus reus of an assaultive crime consists solely of speech.
The elements of the crime of coercion: the requirement of a "demand"
The crime of coercion is defined in AS 11.41.530(a). According to this statute, the offense is committed if a person
compels another to engage in conduct from which [they have] a legal right to abstain[, or to} abstain from conduct in which [they have] a legal right to engage
if this compulsion is accomplished by
[making this other person] fear that, if the demand is not complied with, the person who makes the demand or [someone else] may [do one of the acts listed in subsections (1)-(6) of the statute].
This statute is based on § 212.5 of the Model Penal Code.1 The Model Penal Code provision differs from our statute in that it contains only four subsections (instead of six) defining the types of threats that one must not use to induce someone else to engage in *1192or refrain from conduct. (The drafters of the Model Penal Code consciously decided not to define the crime as broadly as the definition found in Alaska's coercion statute.2) But the same concept underlies both provisions: creating an offense that is patterned after extortion (an attempt to obtain money or property by means of threats), but which is considerably broader than extortion because it applies to attempts to obtain non-pecuniary benefits or to inflict various types of disadvantages upon another person.3
Coercion statutes based on the Model Penal Code have been challenged on constitutional grounds in other states. The seminal case on this issue is a decision from Oregon, State v. Robertson.4 In Robertson, the Oregon Supreme Court ruled that its coercion statute impermissibly restricted the freedom of speech guaranteed under the Oregon Constitution.5 Powell asks us to declare Alaska's coercion statute unconstitutional for much the same reasons. But we need not decide Powell's First Amendment challenge to the coercion statute because there was a flaw in the State's proof: the State failed to present evidence to satisfy each element of the crime.
AS 11.41.530(a) requires the State to prove that the defendant addressed a "demand" to the victim-a demand that the victim do something or refrain from doing something. This element limits the seope of the statute in a constitutionally significant way. If the statute did not require proof that the defendant addressed a demand to the victim-4.e., if the statute merely required proof that the defendant recklessly caused another person to alter their conduct for fear of potential injury-then drunken or mentally unbalanced persons walking down the street might conceivably commit the crime of coercion if, by their erratic actions, they caused other pedestrians to cross the street to avoid the possibility of being accosted or confronted.
In Powell's letters to the halfway house, he referred to his past criminal conduct. Powell also spoke of his anger and frustration at the corrections system-thus suggesting that he might not be in full control of himself and that he might engage in assaultive or destructive behavior in the future. But Powell never demanded that the halfway house personnel do (or refrain from doing) anything in particular. Accordingly, even if we assume that Powell's letters caused the halfway house personnel to reasonably apprehend potential danger if Powell was assigned to their facility, Powell's act of sending these letters did not constitute coercion.
The elements of third-degree assault: whether the threatening conduct must be directed at the victim
By including a "demand" element in the definition of coercion, the legislature avoided the problem of holding someone criminally liable for "coercive" or "assaultive" conduct when that conduct was not directed at anyone in particular. But other Alaska criminal statutes conceivably raise the same problem. In particular, as we noted in Petersen v. State6, Alaska's third- and fourth-degree assault statutes could arguably be interpreted to apply to defendants who, by their erratic or disquieting conduct, recklessly cause other people to fear potential injury, even though the defendants are paying no mind to these other people.7 Thus, an intoxicated motorist whose driving was noticeably erratic might conceivably commit dozens or hundreds of acts of assault as they drove through town-one count for every person who observed the motorist's conduct and, as a result, feared injury.
In addition to the coercion charge, Powell was also charged with third-degree assault for writing his letters to the halfway house. Thus, his case potentially raises this issue of statutory interpretation. However, we need not decide this issue because we conclude that Powell's letters did not contain a "true threat" (a concept developed in Watts v. *1193United States8 and other cases where assaultive crimes have been challenged on First Amendment grounds).
The permissible scope of our review of the superior court's findings
Someone familiar with the normal division of labor between trial and appellate courts would expect an appellate court to be bound by a trial judge's conclusion that a defendant's words constituted a "threat". A trial judge, to reach such a conclusion, must evaluate the content and the context of the defendant's words to assess (1) whether the defendant intended those words to instill fear in the victim, or was reckless regarding this possibility, and (2) whether a reasonable person in the victim's position would have understood the defendant's words as a threat. These assessments appear to be findings of fact that an appellate court must accept unless they are clearly erroneous.9
But, because of First Amendment concerns, the United States Supreme Court has established a special standard of review to govern cases where a defendant is charged with assault (or an assault-like crime) based on words alone. In Dennis v. United States10, the Supreme Court declared that even though a jury must initially decide whether a defendant's words violate a criminal statute (in Dennis, the question was whether the defendant's words were a genuine incitement to immediate violence), it is ultimately the reviewing court's task to decide whether, consistent with the First Amendment, the defendant's words can be punished.11
We have employed this less-deferential standard of review in Powell's case: we have independently examined the content of Powell's letters to see if his words constituted a "true threat". For the reasons explained in Judge Stewart's majority opinion, we conclude that Powell's letters did not contain a "true threat", and thus Powell's act of sending these letters did not constitute the crime of third-degree assault.
. American Law Institute, Model Penal Code (Official Draft, 1962).
. See American Law Institute, Model Penal Code and Commentaries (1980), Part II, Comment to § 212.5, found in the volume covering §§ 210.0 to 213.6 at pp. 266-67.
. See id. at pp. 263-64, and the Alaska Legislature's Commentary to the coercion statute, found in 1978 Senate Journal, Vol. 2, Supp. No. 47 (June 12), p. 29.
. 649 P.2d 569 (Or.1982).
. See id. at 589-590.
. 930 P.2d 414 (Alaska App.1996).
. See id. at 428 n. 8.
. 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969).
. See, e.g., Wright v. Black, 856 P.2d 477, 479 & n. 2 (Alaska 1993) ("Whether an estoppel exists is generally a question of fact. [Estoppel becomes a question of law only when the facts are clearly established.] [The trial court's] [flindings of fact shall not be set aside unless [they are] clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.") (citations omitted).
. 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
. See id., 341 U.S. at 511-14, 71 S.Ct. at 868-870. But see United States v. Viefhaus, 168 F.3d 392, 396-97 (10th Cir.1999), cert. denied, 527 U.S. 1040, 119 S.Ct 2402, 144 L.Ed.2d 801 (1999) ("We consistently have held that whether a defendant's statement is a true threat or mere political speech is a question for the jury.... [Only if] there is no question that a defendant's speech is protected by the First Amendment [can] the court ... dismiss the charge as a matter of law.").