Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Jon Edward Stuebbe, Judge, Super. Ct. No. JW 113431-04
Kristin Cobery, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
On February 22, 2007, Hank M., was charged by petition filed under Welfare and Institutions Code section 602 with making a criminal threat, a violation of Penal Code section 422, and with communicating a threat to a public officer, a violation of section 71. In addition, the petition alleged that the first count was a serious felony within the meaning of section 1192.7, subdivision (c). At the conclusion of the contested jurisdictional hearing, the juvenile court found the allegations of the petition true. The court also found Hank, who was 10 years old at the time of the offense, capable of understanding the wrongfulness of his conduct. (§ 26.)
All further references are to the Penal Code section unless otherwise noted.
The subject incident occurred less than three weeks before Hank’s eleventh birthday. According to the May 11, 2007 Probation Report, Hank was then five feet seven inches tall and weighed 130 pounds.
At the dispositional hearing, the juvenile court reduced both counts to misdemeanors with a maximum confinement period of one year, four months. Sentencing was suspended and Hank was placed on formal probation not to exceed three years. One of the terms of the probation was that Hank receive mental health counseling for his behavioral problems.
On appeal, Hank raises three issues: (1) Was his admission to Officer Franco the result of a voluntary, knowing, and intelligent waiver of his Fifth Amendment privilege against self-incrimination? (2) Is there sufficient evidence to support the juvenile court’s finding that Hank understood the wrongfulness of his actions? and (3) is there sufficient evidence to support the true finding that Hank’s threats were criminal threats within the meaning of section 422? We find insufficient evidence to support a finding that the threat made is of such gravity of purpose and with the immediate prospect of being executed that if falls within the meaning of section 422. Because we find the resolution of the third issue dispositive, we need not discuss the first two. However, as a result, a fourth issue arises: Is there sufficient evidence to support the true finding on the section 71 count? We conclude there is not and will reverse the juvenile adjudication on both counts.
Facts
On October 25, 2006, Hank was held in his fifth grade classroom during recess because he had not completed his homework assignment. Other children were held in as well. Hank, who was seated at his desk, became very upset about losing his recess. He told his teacher, Deanne B., in an angry and harsh tone, “I’m going to kill you.” He repeated this threat three additional times during the incident. Hank also said that he knew where his teacher lived and that he “might just bring a knife to school and stab himself and kill himself” in front of her, because she would “like that.” He rambled on, talking about “a lot of different things,” and said something about “fighting for stuff,” and “what’s the use.” He did not leave his desk during the outburst, but he may have slapped a book down on the desk or hit things on the desk.
Deanne B. testified that Hank was so angry she was afraid he might do something physical, so she dismissed the other students and called the principal. She believed Hank was capable of harming her. She was nervous and afraid and was uncertain as to what would happen. Deanne B. testified that Hank had been in her classroom since school began in August 2006 and that he was a challenging student with behavioral problems. Her encounter with Hank left her very distraught, although she continued to teach the rest of the day.
The principal testified that she went to the classroom and removed Hank to her office. Deanne B. was “a little upset” when she arrived there. The principal also testified that the previous May Hank was involved in an altercation on the playground. He was “threatening students and [the principal].” Hank said he would “take [her] out.” At this time, the principal told Hank it was wrong to threaten people. He was suspended from school for his conduct. There is no evidence about the nature of the playground altercation.
The school reported the present incident to the school liaison officer, Officer Franco, who Mirandized Hank. Hank waived his rights and gave a statement to Officer Franco. Hank’s mother was present and agreed to the interview. Hank admitted making the threatening statements and told the officer he knew it was wrong to threaten people.
(Miranda v. Arizona (1966) 384 U.S. 436.)
All statutory references are to the Penal Code unless otherwise noted.
At the contested hearing, Dr. Kevin Seymour, Hank’s treating psychologist, testified that Hank had been given a pediatric bipolar diagnosis. He said that when Hank becomes agitated, such as when he is denied something he wants, he acts automatically: from emotion, not reason. Seymour characterized this as “explosive behavior,” or what in lay terms would be called a “temper tantrum.” According to Seymour, sometimes Hank loses control and cannot remember the incident. Seymour explained that when Hank is in a calm, relaxed state, he does know right from wrong. But when he becomes agitated, he is less likely to understand right from wrong and more apt to act automatically.
Discussion
I. Section 422
Hank contends there is insufficient evidence to sustain the court’s true finding on the first count, a violation of section 422. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.)
The statute reads as follows:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (§ 422.)
The elements of the offense include: (1) the minor willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his or her own safety. (§ 422; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) There is no question that Hank willfully threatened to kill Deanne B. But words alone are generally insufficient to establish the remaining elements of the offense. “[I]t is the circumstances under which the threat is made that give meaning to the actual words used.” (People v. Butler (2000) 85 Cal.App.4th 745, 753; see also In re Ernest H. (2004) 125 Cal.App.4th 298, 310 [to determine whether words spoken may be construed as serious expression of intent to commit violent act, must look at circumstances in which they are spoken].) The statute’s plain language requires that the threat be evaluated by its context to determine whether the words spoken rise to the level of a criminal threat with penal consequences. “[J]ust as affirmative conduct and circumstances can show that a criminal threat was made, the absence of circumstances that would be expected to accompany a threat may serve to dispel the claim that a communication was a criminal threat. [Citation.]” (In re Ryan D., supra, 100 Cal.App.4th at p. 860.)
As stated above, the crime requires the specific intent of the utterer that the statement be taken as a threat. The evidence here must show Hank specifically intended that Deanne B. believe he would take steps to try to kill her; the circumstances must show he intended that she take the threat itself seriously. Thus, actions or inactions on his part must be examined to determine whether he entertained such specific intent to commit a criminal threat, with the required gravity of purpose, beyond the mere utterance of threatening words.
The statute was not enacted to punish emotional outbursts. The prosecution may not prove the offense by simply relying on the words spoken. (People v. Felix (2001) 92 Cal.App.4th 905, 913.) “[Section 422] targets only those who try to instill fear in others.” (Supra, 92 Cal.App.4th at p. 913.) It does not punish “mere angry utterances or ranting soliloquies, however violent” (People v. Teal (1998) 61 Cal.App.4th 277, 281) or, as in this case, a childish temper tantrum resulting from the denial of recess. The threat must be genuine and real. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139.) It must be made with a gravity of purpose and with an immediate prospect of execution. (§ 422.) The statute requires that the threat “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution.” (§ 422, italics added.) The “so” in section 422 means that the unequivocality, unconditionality, immediacy, and specificity of the threat must be present in the threat itself and in the surrounding circumstances. (In re George T. (2004) 33 Cal.4th 620, 635.)
We believe Hank’s threats, given the circumstances under which they were made, lack the indications of a serious, deliberate statement of purpose required under the statute. We also believe the circumstances surrounding the threat do not establish an immediate prospect of execution. At the time of his threat, Hank was a 10-year-old fifth-grader. He responded angrily to the loss of his recess and said terrible things. But the context of those statements does not support a conclusion that his threats were deliberate, seriously made, or genuine. We are not holding that a 10 year old may never violate section 422. But, on this record, the evidence establishes no more than words, however wrong, uttered under circumstances that do not support the statutory elements.
Hank said he would kill Deanne B. Although he repeated this statement three more times during the incident, he did so from the confines of his desk. He also rambled on about “fighting for stuff,” and “what’s the use.” Deanne B. had located herself approximately five feet from him. Although he may have hit a book or other item on his desk, he did not throw anything and made no physical move toward his teacher or any other student. (Cf., People v. Lepolo (1997) 55 Cal.App.4th 85, 88-90 [defendant raised a machete over his head, pointed to a police officer, and made threat]; In re Marcus T. (2001) 89 Cal.App.4th 468, 471 [high school student threatened teacher with clenched fists and gang reference]; In re Ernesto H., supra, 125 Cal.App.4th at p. 304 [high school student when threatening teacher had head tilted back, took step closer, and had hands clenched at side]; People v. Teal, supra, 61 Cal.App.4th at p. 281 [defendant repeatedly shouted, “I’m going to kill you, you son of a bitch” while trying to batter down victim’s front door and smash his front window].) When the principal came to the room, Hank left with her and went to the office. There is no evidence he resisted. Hank submitted to the principal’s authority, just as he had submitted to his teacher’s authority by staying in the room at his desk until removed by the principal. The threats were not repeated after Hank was removed from the classroom and the outburst ended.
There is no evidence that Hank had ever been involved in aggressive or violent behavior toward Deanne B. during his time in her classroom. (See People v. Allen (1995)33 Cal.App.4th 1149, 1151-1154 [evidence of stormy relationship between person making threat and recipient relevant to seriousness of the threat]; People v. McCray (1997) 58 Cal.App.4th 159, 172 [defendant’s past violence toward the victim was relevant to the determination of whether defendant made a terrorist threat]; In re David L. (1991) 234 Cal.App.3d 1655, 1660 [threat followed series of hostile encounters].) Deanne B. testified that Hank was a behavioral problem in her classroom, but there is no detail as to the nature or extent of the behavior problems she experienced from Hank. Did he fail to turn in homework? talk without raising his hand? misuse classroom supplies? Or was the nature of his behavioral problems much more serious? The principal testified she was unaware of any prior threats made against Deanne B.
There is also no evidence of any prior violent behavior by Hank toward anyone else. (People v. Allen, supra, 33 Cal.App.4th at p. 1156 [victim’s knowledge of defendant’s prior conduct is relevant in establishing victim was in state of sustained fear].) There is no evidence of gang involvement. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341-1342 [association with a gang is relevant to seriousness of threat].) There is evidence that Hank was involved in an “altercation” with other students on the playground the previous May, but there is no evidence as to the nature of the altercation. The record is completely silent on the issue other than to say that it happened. We know that Hank verbally threatened the principal during this altercation by saying he would “take her out,” but there is no evidence that Hank took any action to fulfill his threat or committed any aggressive act towards the principal or any student. There is no evidence the principal took Hank’s threat as a serious threat to kill her. She told him he could not do that and that it was wrong to threaten people. There is no evidence that Hank was large enough or strong enough to kill or seriously harm an adult. There is no evidence of a weapon available to him. (Cf. In re David L., supra, 234 Cal.App.3d at p. 1658 [third party heard metal clicking noise and minor stated sound was a gun].)
There are two statements made by Hank during his outburst that might be argued as supplying evidence of a serious deliberate intent, a gravity of purpose and/or a prospect of immediate execution. But a closer look at both of these statements undermine the argument. Hank told Deanne B. that he knew where she lived. In other circumstances, this might be read as an intent to carry out the threat later. We acknowledge that a threat of future injury or death is actionable under section 422, when coupled with some evidence of immediate and prospective execution. (See People v. Hopkins (1983) 149 Cal.App.3d 36, 39; see also People v. Lopez (1999) 74 Cal.App.4th 675, 680.) For example, in Hopkins, a section 71 case, the defendant told a school principal and a teacher who had ejected the defendant from school grounds, “I’ll go home and get a gun and come back and shoot you.” (Hopkins at p. 39.) The defendant was an adult unlawfully on an elementary school campus. His demeanor and language suggested he was capable of getting the promised gun and returning in the near future to carry out the threat. In Lopez, the defendant’s statement that he wanted to get a gun and shoot the victim had the immediate prospect of execution when the evidence established that he was a paranoid schizophrenic with a history of assaultive behavior who had used methamphetamine for a week. (Lopez at p. 680.) In contrast, Hank is 10 years old, has no assaultive history. There is no evidence that Hank actually knew where his teacher lived, or that he would have the wherewithal of getting there even if he did. The record is silent on this issue. The circumstances under which Hank made his comment about knowing where his teacher lived simply do not support a conclusion that he intended his teacher to believe he would or could carry out his threat to kill her later at her home.
Hank also said that he “might” bring a knife to school. But, he added that he would use the knife to kill himself, and added the childish assertion that if he killed himself in front of Deanne B. she would “like that.” This statement that he would kill himself reflects the undirected nature of Hank’s tantrum. It was not so much that he wanted Deanne B. to believe that he would try to kill her; rather he made outrageous contemporaneous statements to get her attention, including that he would use a knife on himself rather than on her. He never threatened Deanne B. herself with a knife. And, as we have already noted, there is no evidence that Hank would have access to a knife capable of inflicting serious bodily harm or death in any event.
As the First District noted in its decision In re Ricky T., supra, 87 Cal.App.4th 1132, where a minor’s intemperate, rude, and insolent remarks do not suggest any gravity of purpose given the circumstances under which they are made and there is no evidence offered that the angry words were accompanied by any show of physical violence, such as pushing or shoving or other close-up physical confrontation, the threat made is not the type of threat the statute punishes. (Id. p. 1138.)
We do not doubt Deanne B.’s concern when faced with Hank’s angry and unacceptable outburst. She testified that she was nervous and afraid because she did not know what would happen during the outburst. She also testified that she believed Hank might do her physical harm, although she did not specify what type of harm she feared. Deanne B.’s actions in dismissing the other children from the classroom and calling the principal, as the court in Ricky T. noted, were an appropriate response when a teacher or school administrator is faced with a disruptive classroom incident. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.)
Unfortunately, children learn at an early age that “I will kill you” is the worst thing one can say to another person. Using such an invective is wrong. It should invoke consequences. It cannot be tolerated in a school setting. We are sympathetic to teachers and other school personnel who in today’s world are forced to confront a wide spectrum of socially unacceptable behavior from students. We recognize such threats should not be ignored. But such threats are not, when uttered without gravity of purpose or without an immediate prospect of execution, criminal threats with penal consequences. (Id. at p. 1141 [“Students who misbehave should be taught a lesson, but not, as in this case, a penal one.”].) This record, even drawing all inferences in favor of the juvenile court’s findings, simply does not support the required elements of section 422.
The dissent protests that it is not our prerogative to reject the teacher’s testimony, and that we ultimately hold “repeated, unambiguous, angry, death threats are not criminal unless physical force or a weapon is displayed.” A careful reading of this majority opinion belies any notion that we reject the teacher’s testimony; nor do we hold that force or a weapon must be displayed. Rather, we have reviewed the record evidence for all of the circumstances surrounding this 10 year old’s threatening remarks to decide whether they constitute a criminal threat by meeting the stringent statutory requirements of specific intent, gravity of purpose and immediate prospect of execution.
Actually, section 71, unlike section 422, contains no requirement of immediacy. (People v. Dunkle (2005) 36 Cal.4th 861, 920.)
II. Section 71
Although Hank has appealed on the grounds that the true findings in both counts, the violation of section 422 and the violation of section 71, are not supported by the evidence, his opening brief does not specially address the lack of evidence to support the section 71 conviction. Generally a failure to support a contention on appeal with argument or authority waives the issue. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366 [appellate court may consider issue waived if not supported by argument or authority].) But, because we have determined for the reasons stated that there was insufficient evidence of the prospect of immediate execution to support the section 422 count, a true finding on the second count would result in an inconsistency. Section 71 has a similar element for which there is no evidentiary support. Therefore, pursuant to Government Code section 68081, we asked for and received additional briefing from both parties on whether there was likewise insufficient record evidence support for the true finding on the section 71 count.
Section 71 reads as follows:
“Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense . . . .”
The elements of the offense include “‘(1) A threat to inflict an unlawful injury upon any person or property; (2) direct communication of the threat to a public officer or employee; (3) the intent to influence the performance of the officer or employee’s official duties; and (4) the apparent ability to carry out the threat.’ (63 Ops.Cal.Atty.Gen. 5, 7 (1980).) The offense is punishable only if all elements of the offense are present.” (People v. Hopkins, supra, 149 Cal.App.3d at pp. 40-41, fn. omitted.)
The elements of section 422 and section 71 are similar, but not identical. However, both statutes require that there be an apparent ability to carry out the threat. Section 422 requires that the threat be made under circumstances that convey “an immediate prospect of execution of the threat,” and section 71 requires that the threat must be made under circumstances that would lead the recipient to a reasonable belief that the “threat could be carried out.” We believe the record simply does not support a finding that a reasonable person would believe Hank’s threat to kill could or would be carried out given the circumstances under which it was made.
Hank’s angry threat to kill his teacher was made by a 10-year-old boy, sitting at his desk in a fifth-grade classroom, in the midst of a temper tantrum over being kept inside for recess. However wrong it was to make the threat, we have concluded there is no evidence that Hank had an immediate ability to carry out the threat. There is no history of violence, no evidence of use or access to weapons, and no gang activity. Given Hank’s age, his lack of violent history, and the circumstances under which the threat was made, we find a lack of proof on this element. Hank was an immature child, his immaturity emphasized by his response to being kept in at recess. The conviction of count two, a violation of section 71, lacks substantial evidence.
DISPOSITION
The judgment is reversed.
I CONCUR: GOMES, J.
KANE, J., Dissenting.
I dissent.
The majority concludes that a ten-year-eleven-month-old fifth-grade boy1 who angrily told his teacher “I’m going to kill you,” verbalized the same threat three additional times, warned her that he knew where she lived and said he “might just bring a knife to school and stab himself and kill himself” in front of her, did not violate sections 422 (criminal threat) and 71 (threatening school employee) of the Penal Code2 because the evidence does not support a conclusion that his threats were deliberate or seriously made or that he had the means to accomplish the threat. I disagree with the majority’s factual and legal conclusions and would uphold the findings of the lower court.
The trial court, acting as the trier of fact, found that Hank violated both sections 422 and 71. There was ample evidence presented to support the trial court’s determination that all four elements of a criminal threat under section 422 were proven beyond a reasonable doubt: (1) willful threat to harm; (2) specific intent that it be taken as a threat; (3) a threat that was so specific, unconditional, unequivocal and immediate as to convey a gravity of purpose and an immediate prospect of execution; and (4) the threat caused the person threatened reasonably to be in sustained fear. The majority opinion acknowledges that element 1 was satisfied, but reverses the section 422 adjudication on the basis that elements 2, 3 and 4 were not shown by the evidence. The majority reverses the section 71 adjudication because it finds there was insufficient evidence of the prospect of immediate execution, which it contends is also an element of the section 71 charge.3
I disagree with the majority’s view that a criminal threat cannot be made unless there is some physical demonstration of force that accompanies it. Neither of these statutes includes such a requirement. While there are reported cases in which criminal threats were uttered with clenched fists (In re Marcus T. (2001) 89 Cal.App.4th 468), a weapon in hand (People v. Lepolo (1997) 55 Cal.App.4th 85), or a physical movement toward the victim (People v. Teal (1998) 61 Cal.App.4th 277), there is no requirement that some physical display of force be evident before a violation of section 422 or section 71 may occur. All that is necessary is that the words in context satisfy the statutory elements of the particular offense. In the context of what happened here, there is substantial evidence to support each of the two statutes’ elements.
The trial court found that Hank made the threat with the specific intent that it be taken as a threat. Frankly, on this record, I do not know how one could conclude otherwise. Not only did Hank threaten to kill his teacher, he repeated it three more times and then, significantly, told her he knew where she lived. The majority passes this off as not serious or deliberate conduct because Hank never left his desk and because there was no evidence that a physical confrontation was imminent.
The majority confuses element 1 with element 3. Whether Hank stayed at his desk and whether a physical encounter was imminent addresses element 3 (whether the threat posed an immediate prospect of execution), not element 1 (whether Hank made the threat with the specific intent that it be taken as a threat). Hank did not testify. Hank’s intent must be analyzed based on the words he uttered and the attendant circumstances. The specific intent element does not require an intent to carry out the threat, only that there was an intent to instill fear in another. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860, 861; People v. Felix (2001) 92 Cal.App.4th 905, 913.)
Here, Hank made multiple death threats, mentioned he might get a knife and return to the school, and told the teacher he knew where she lived. Hank spoke in a voice that was “very harsh, very angry.” He was within five feet of the teacher when he threatened her. The teacher also testified that Hank may have hit things on his desk and slapped a book down on the desk. On that evidence, the trial court found there was specific intent to cause the teacher to regard the words as a threat. A reviewing court must defer to the trial court’s resolution of the facts by viewing the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578; In re Ryan D., supra, 100 Cal.App.4th at p. 862.) It is not the appellate court’s prerogative to reweigh that evidence and come to a different conclusion than the fact finder.
The trial court heard the testimony of the teacher and found credible her testimony that the threat caused her to be in sustained fear. She explained that when Hank first threatened her, she was not afraid and tried to talk to him, but when he repeated the death threat several times in a harsh tone, told her he knew where she lived and mentioned returning to school with a knife, she became afraid. She testified that she was nervous, did not know what would happen and was afraid Hank might do something physical. She cleared the classroom of the other students and called the principal, who then removed Hank from her classroom. Her reaction was reasonable and responsible. Hank’s intimation that the teacher was not in fear because she continued to teach that day is without merit. Her testimony was that “It was a very long day and I was very distraught, but I went back to my kids.” Under the circumstances, her decision to remain at school and continue teaching should be admired, not used to attack the credibility of her testimony that these events caused her to experience real fear. Again, it is not the prerogative of this appellate court to reject the trial court’s belief that the teacher was testifying truthfully when she said Hank’s threats placed her in fear.
I believe the majority opinion fails to accord meaning to the word “prospect” in section 422. It is the immediate prospect of execution of the threat that must be shown, which is different from saying that there must be a showing of imminent conduct (see People v. Melhado (1998) 60 Cal.App.4th 1529, 1538). A criminal threat need not specify the time or precise manner of execution. (In re David L. (1991) 234 Cal.App.3d 1655, 1660; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341; People v. Butler (2000) 85 Cal.App.4th 745, 752.) It does not require the showing of an immediate ability to carry out the threat. (In re David L., supra, at p. 1660; People v. Lopez (1999) 74 Cal.App.4th 675, 679.) Hank’s threats intended to cause the teacher to fear that he would kill her either at school or at her home. This was sufficient to satisfy element 3 that the threats conveyed an immediate prospect of execution.
The majority opinion states “there is no evidence of a weapon available to [Hank].” While I dispute that such evidence is necessary before the offense in section 422 is committed (In re David L., supra, 234 Cal.App.3d at p. 1660 [422 threat does not require expression of details of time or manner of execution of threat]), Hank expressly mentioned getting a knife and returning with it to the school. What home does not have kitchen knives that could be used as weapons? My colleagues seem satisfied that because Hank said he might use the knife on himself, there was no evidence that the knife could be used to carry out his death threat on the teacher. I do not agree with that reasoning or conclusion. In my view, it would have been unreasonable for this teacher to assume that Hank’s repeated death threats made in combination with a threat to kill himself with a knife did not carry the possibility that the deaths threats against her could be carried out with a knife. The majority opinion erroneously declares “There is no evidence that Hank actually knew where his teacher lived.” There was uncontradicted evidence that Hank said he knew where the teacher lived. That itself is evidence that Hank did know where she lived and it is improper for this court to ignore or reject such evidence as though it was the trier of fact.
Given Hank’s behavior, it was reasonable for the teacher to be in sustained fear that Hank might harm her. The evidence below, including all reasonable inferences, supports the judgment that Hank willfully threatened his teacher, specifically intended to engender fear, the teacher reasonably experienced sustained fear, and the threats were specific and threatened an immediate prospect of execution.
The holding of this case is that repeated, unambiguous, angry, death threats are not criminal unless physical force or a weapon is displayed. Adding that element to these statutes should be the work of the Legislature not the courts.