Opinion
No. 51331-1-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-8-03134-1. Judgment or order under review. Date filed: 10/30/2002.
Counsel for Appellant(s), Sharon Jean Blackford, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
During an angry confrontation, 14-year-old J.W. told Jesse Burks, `If I had a gun, I'd kill you right now.' Burks replied, `I'd like to see you try', to which J.W. responded, `And I'd get away with it, too.' The State charged J.W. with felony harassment. Applying the existing caselaw, the juvenile court concluded that it need not decide whether the threat placed Burks in fear of being killed. The court ultimately found that the threat put Burks in fear of bodily injury and convicted J.W. as charged. J.W. appeals, arguing that the State failed to demonstrate a `true threat,' the felony harassment statute is overbroad, and the trial court was required to find that Burks feared death, not just bodily injury. Although J.W.'s overbreadth and `true threat' arguments lack merit, the State Supreme Court's recent decision in State v. C.G. validates his argument that the threat had to place Burks in reasonable fear of death. In light of C.G., we remand for the court to enter findings as to whether the threat placed Burks in reasonable fear of death.
Finding of Fact 2.
State v. C.G., Wn.2d 80 P.3d 594 (2003).
The facts are not disputed and will be repeated here only when necessary to explain our decision.
DECISION
J.W. first contends the evidence was insufficient to demonstrate that his threat was a `true threat.' To comport with the First Amendment, the harassment statute's reach must be limited to `true threats.' A `true threat' is `a statement made `in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual]." We review the evidence regarding the threat in a light most favorable to the State. J.W. contends his threat was conditional and could only be interpreted as a self-limiting and ultimately idle threat. But a conditional threat can constitute a true threat if the surrounding circumstances convey a message of the speaker's genuine intent to harm the person threatened. In State v. Williams, a recently fired employee argued with his employer, started to leave, and said, `Don't make me strap your ass.' Despite the statement's contingency, our Supreme Court held the evidence was sufficient to prove felony harassment: `Considering this in the light most favorable to the [S]tate, a rational trier of fact could possibly conclude this statement communicated Williams' willingness to return and cause bodily harm to [the victim] in the future should [the victim] take action against him.' The same is true here.
State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001); State v. E.J.Y., 113 Wn. App. 940, 949-50, 55 P.3d 673 (2002).
Williams, 144 Wn.2d at 207-08 (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)).
State v. Side, 105 Wn. App. 787, 789-90, 21 P.3d 321 (2001).
Williams, 144 Wn.2d at 211-12.
Williams, 144 Wn.2d at 212.
J.W.'s threat was made following a series of hostile encounters, largely initiated by J.W., in which he subjected Burks and his friends to shoving, name calling, and rock throwing. Burks had seen J.W. act violently towards others. He had also seen J.W. with bullets. Viewing the threat in context and in a light most favorable to the State, a rational trier of fact could interpret it as a serious expression of intent to harm Burks. The evidence was sufficient to demonstrate a `true threat.'
J.W. next contends the felony harassment statute is overbroad and violates the First Amendment. But he concedes that when limited to true threats, the statute does not affect a substantial amount of protected speech and is constitutional. Because we have concluded there was sufficient proof of a true threat, this argument fails.
Williams, 144 Wn.2d at 208; E.J.Y., 113 Wn. App. at 950-51.
Last, J.W. contends the trial court was required to find that his threat placed Burks in fear of being killed. He argues that, contrary to prior appellate decisions and the trial court's statements below, fear of bodily injury is insufficient where felony harassment is based on a threat to kill. He is correct. During the pendency of this appeal, our State Supreme Court overruled prior caselaw and held for the first time that `[i]n order to convict an individual of felony harassment based upon a threat to kill, RCW 9A.46.020 requires that the State prove that the person threatened was placed in reasonable fear that the threat to kill would be carried out [.]' Because the trial court expressly declined to reach this question, and because evidence regarding the effect of the threat was presented below, we remand solely for the court to enter findings on whether J.W.'s threat placed Burks in reasonable fear of death.
State v. C.G., Wn.2d 80 P.3d 594, 598 (2003).
Although the court's written findings and conclusions state that Burks was placed in reasonable fear that the threat would be carried out, Conclusion of Law 2(c), the court's oral findings and conclusions, which are expressly incorporated into the written findings and conclusions, make it clear that the court did not reach the question of whether Burks feared he would be killed. Instead, the court concluded that it was sufficient to find that Burks feared physical harm.
Burks testified that he thought the threat to his life was not an idle one because he had seen J.W. with bullets.
See generally State v. Alvarez, 128 Wn.2d 1, 17-21, 904 P.2d 754 (1995) (remand appropriate if the evidence in the record is sufficient to support a missing finding and no additional evidence is taken on remand); State v. Avila, 102 Wn. App. 882, 10 P.3d 486 (2000).
Remanded for proceedings consistent with this opinion.
AGID and BAKER, JJ., concur.