MEMORANDUM OPINION

MANNHEIMER, Judge.

Cynthia R. Wightman, a teacher in Galena, was accused of fourth-degree assault under AS 11.41.230(a)(3) ("recklessly plac[ing] another person in fear of imminent physical injury") based on an incident where she held a student down with her knee on his back and tickled him for somewhere between four and thirty seconds. The student testified that he was hurt and "a little" scared by Wightman's conduct. The student added that, because of the pressure of Wightman's knee, his back hurt for the next two or three hours.

Wightman's defense was that her use of force was justified under AS 11.-81.430(a)(2) — i.e., that she took reasonable and necessary action to preserve order in the classroom.

Wightman waived her right to jury trial, and her case went to trial in front of District Court Judge Winston S. Burbank. Judge Burbank rejected Wightman's defense that her conduct was justified to preserve order in the classroom, but the judge nevertheless acquitted Wightman of fourth-degree assault.

Judge Burbank did not question the student's testimony that he was both hurt and frightened by Wightman's conduct. However, Judge Burbank concluded that the State had failed to prove that Wightman acted "recklessly" with respect to the possibility that her conduct would cause the student to be hurt or to fear imminent physical injury.

Under the definition codified in AS 11.81.900(a)(3), a person acts "recklessly" with respect to a result when they are subjectively aw are of, and consciously disregard, a substantial and unjustifiable risk that their conduct will cause that result. Thus, when Judge Burbank acquitted Wightman of fourth-degree assault, he found that the State had failed to prove that Wightman was subjectively aware of, and consciously disregarded, a risk that her conduct would cause the student to apprehend that he was about to suffer physical injury.

The current appeal arises from the fact that, after Judge Burbank announced his "not guilty" verdict with respect to the fourth-degree assault charge, the judge then sua sponte found Wightman guilty of the lesser offense of disorderly conduct under AS 11.61.110(a)(6) — "recklessly creat[ing] a hazardous condition for [the student] by an act which has no legal justification or excuse". Wightman appeals this conviction for disorderly conduct.

After we read the parties' briefs on appeal and familiarized ourselves with the record of the proceedings in the district court, we concluded that there was a significant possibility that Judge Burbank's two verdicts were logically inconsistent. We therefore directed the parties to file supplemental briefs addressing the issue of whether it was inconsistent for Judge Burbank (1) to acquit Wightman of fourth-degree assault because the State failed to prove that she acted recklessly with respect to the possibility that her conduct would cause her student to fear imminent physical injury, but at the same time (2) to convict Wightman of disorderly conduct under the theory that she acted recklessly with respect to the possibility that her conduct would create a hazardous condition for the student.

We have now received and considered the supplemental briefs of the parties, and we conclude that the two verdicts are indeed inconsistent.

Although some jurisdictions allow juries (or judges) to return verdicts that are logically inconsistent, Alaska does not. In DeSacia v. State, 469 P.2d 369 (Alaska 1970), our supreme court held that when a defendant is tried for two or more crimes, and the trier of fact finds the defendant guilty of one or more charges but innocent of one or more other charges, these verdicts must be logically consistent. If the verdicts are not logically consistent, then the defendant's convictions must be reversed. DeSacia, 469 P.2d at 378.

The DeSacia decision further holds that, in these situations, the State is barred from retrying the defendant on those counts for which the defendant was acquitted, id. at 378-79, but the State is authorized to retry the defendant on those counts for which the defendant was convicted, id. at 379-381.

In Wightman's case, the inconsistency of the verdicts arises from the fact that Judge Burbank found that Wightman had not been subjectively aware of a substantial and unjustifiable risk that her conduct would cause the student to apprehend imminent physical injury, but that Wightman nevertheless had been subjectively aware of a substantial and unjustifiable risk that her conduct would create a hazardous condition for the student.

It is, of course, possible that a defendant might engage in conduct that creates a dangerous or hazardous situation for another person (for example, by aiming a loaded firearm at the other person), but that does not cause the other person to apprehend a danger of imminent injury — as, for instance, if the other person is asleep, or is looking in another direction, or is so young as to be completely ignorant of the destructive power of firearms.

But in Wightman's case, the student was aware of all pertinent aspects of Wightman's conduct. There was no reasonable possibility that Wightman's conduct placed the student in danger of imminent injury but the student remained unaware of this danger. Indeed, the student testified that he did apprehend a danger of injury — and that he was, in fact, physically injured by Wightman's actions (her act of forcibly holding him down on the floor by the pressure of her knee against his back).

This being so, there is a logical inconsistency between Judge Burbank's finding that Wightman was subjectively aware of the risk that her conduct would create a dangerous condition for the student ( i.e., create a situation where the student might suffer injury) and Judge Burbank's finding that Wightman was not subjectively aware of the risk that her conduct would cause the student to apprehend this danger.

In its supplemental brief, the State does not challenge this analysis. Instead, the State suggests that Judge Burbank did not convict Wightman of disorderly conduct for her act of holding the student down with her knee and tickling him, but rather based on the trial testimony that Wightman took the student from his chair and put him on the floor before she placed her knee on his back.

The State contends that Judge Burbank might have concluded that Wightman was subjectively aware that this preliminary conduct (taking the student from his chair and putting him on the floor) placed the student in danger of injury, even though the student was not yet scared and had not yet suffered any hurt. And, on this basis, the State suggests that Judge Burbank's decision to convict Wightman of disorderly conduct is reconcilable with his decision to acquit Wightman of fourth-degree assault.

However, the record provides no support for the State's theory that Judge Burbank convicted Wightman of disorderly conduct for grabbing the student and putting him on the floor, rather than for the actions she took immediately afterward: holding him down with her knee and tickling him.

The student testified that he was not hurt when Wightman grabbed him and placed him on the floor, and that he was hurt and scared only when Wightman put her knee on his back. Moreover, in closing argument, the prosecutor relied completely on Wightman's act of putting her knee on the student's back as the basis for finding her guilty of fourth-degree assault:

Prosecutor: [W]e have a woman who is over 200 pounds, and a 12-year-old boy who is about 85 pounds underneath this woman, being tickled. [Wightman] testified that she was holding him down. . . .

Throughout [this episode], it seems highly probable that, with [Wightman's] knee on his back, that he could have been hurt. He could have been more severely hurt than he was. [The student] actually testified that his back hurt. Other kids testified that they saw him cry.

This conduct — Wightman's act of holding the student down with her knee on his back — was also the only conduct that Wightman's attorney addressed in the defense summation, and it was the only conduct that the prosecutor discussed in his rebuttal summation.

In other words, even if the State's proposed explanation of Judge Burbank's verdicts were theoretically possible, this explanation is unreasonable, given the way this case was litigated and argued to the court.

In Davis v. State, 684 P.2d 147 (Alaska App. 1984), the State also argued that seemingly inconsistent jury verdicts might hypothetically be reconciled. We rejected the State's argument because the State's suggested interpretation of the jury's verdicts, while hypothetically possible, was not reasonable in light of the record.

The defendant in Davis was convicted of criminally negligent homicide and reckless endangerment after his car collided with a pickup truck, injuring the driver and killing the passenger. Davis was convicted of criminally negligent homicide for causing the death of the passenger, but he was acquitted of assault for injuring the driver. Davis challenged the verdicts as inconsistent, arguing, inter alia, that the jury's finding that he caused the passenger's death was inconsistent with its finding that he did not cause the driver's injuries.

The State attempted to reconcile the verdicts by suggesting that the jury might have concluded that the driver was not injured, or that Davis had not employed a dangerous instrument when causing the driver's injuries. This Court rejected the State's suggestions. We noted that it was undisputed at trial that the driver suffered substantial injuries. We further noted that, given the jury's verdict that Davis was guilty of criminally negligent homicide for causing the death of the passenger, it would have been irrational for the jury to conclude that Davis's car was not a dangerous instrument.

In Wightman's case, we reach a similar conclusion. Given the evidence in this case, and the way the case was argued, it is unreasonable to believe that Judge Burbank convicted Wightman of disorderly conduct on the theory that Wightman recklessly placed the student at risk of injury by grabbing him from his chair and putting him on the floor. All of the evidence in the case indicated that the more significant risk of injury occurred later — when Wightman put her knee on the student's back, forcibly held him down, and tickled him.

It was this latter conduct, and this latter risk of injury, that formed the cornerstone of the prosecutor's summation at the end of trial, and the prosecutor suggested no other alternate theory of culpability. Indeed, even on appeal, the State pursued this same theory of the case until we pointed out the potential inconsistency of the verdicts. In its initial brief to this Court, the State expressly argued that the "hazardous condition" required for a disorderly conduct conviction was created when Wightman pinned the student to the floor with the pressure of her knee.

Given all of this, we conclude that even if the State's suggested construction of Judge Burbank's verdicts were hypothetically possible, there is no reasonable possibility that Judge Burbank based his verdicts on the theory of the case that the State now proposes. Accordingly, we conclude that the two verdicts are irreconcilable — and that Wightman's conviction for disorderly conduct must be reversed.

Wightman argues that, under the doctrine of collateral estoppel, the State should be barred from retrying her for disorderly conduct.

Wightman acknowledges that, in DeSacia, our supreme court rejected this same argument: i.e., the argument that the verdicts of acquittal should be given estoppel effect, thus barring the State from retrying the counts for which the defendant was convicted. But Wightman argues that the decision in DeSacia rested on the fact that DeSacia's case was tried to a jury, and that the jury returned general verdicts rather than issuing the detailed findings of fact that are required in a bench trial. ( See Alaska Criminal Rule 23(c).)

Wightman contends that, because of the jury's general verdicts in DeSacia, it was impossible for the supreme court to determine the jury's theory of the case or the precise source of the inconsistency in the jury's verdicts, so the supreme court decided to allow the State to retry the charge for which DeSacia was convicted. Wightman argues that, because she was tried in a bench trial, it is possible to identify the precise source of the inconsistency in Judge Burbank's verdicts, and thus to apply the doctrine of collateral estoppel to the disorderly conduct verdict.

We disagree with Wightman's reading of DeSacia. Even though the supreme court held in DeSacia that the guarantee against double jeopardy barred the State from re-prosecuting DeSacia on the charge for which he was acquitted, the supreme court emphasized that its holding on this issue "should not be taken as an expression of faith on our part in the merit of the acquittal as a resolution of the [factual] issues involved in the charge". Instead, the supreme court declared, the inconsistency in the verdicts "reflects as much doubt upon the acquittal as it [does] upon the conviction." The court concluded that there was no persuasive authority on the question of whether the doubt raised by the acquittal was sufficient to trigger a claim of collateral estoppel — i.e., sufficient to bar any retrial of the counts for which a defendant was convicted. The supreme court then ruled that considerations of fairness militated in favor of a rule allowing a retrial on those counts:

In bringing this appeal, the appellant has successfully argued that the inconsistency between [the] verdicts rendered his conviction meaningless. In our opinion, it would impose an unjustifiably harsh restriction on the state to allow the appellant to argue, in the same breath, that his acquittal is of sufficient certainty to suit the purposes of collateral estoppel. There is simply no reason here to force the prosecution to run a perilous gauntlet of criminal procedure. Under these circumstances, to allow the appellant to invoke the rule of collateral estoppel would . . . "convert the guarantee of double jeopardy from a shield into a sword".

DeSacia, 469 P.2d at 381.

This same reasoning applies to Wightman's case. Judge Burbank made irreconcilable findings on the question of whether Wightman acted recklessly, and these irreconcilable findings cast as much doubt on Wightman's acquittal for fourth-degree assault as they do on her conviction for disorderly conduct. Consequently, we apply the rule of DeSacia: the doctrine of collateral estoppel does not bar the State from retrying the disorderly conduct charge.

Conclusion

The judgement of the district court is REVERSED, but the State may retry Wightman for disorderly conduct.