State v. Alphonse

• Decision Date: 07 January 2008
• Docket Number: No. 58449-9-I.,58449-9-I.
• Citation: 142 Wn. App. 417,174 P.3d 684
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Edison ALPHONSE, Appellant.

174 P.3d 684

142 Wn. App. 417

STATE of Washington, Respondent, v. Edison ALPHONSE, Appellant.

No. 58449-9-I.

Court of Appeals of Washington, Division 1.

January 7, 2008.

Susan F. Wilk, Washington Appellate Project, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent.

Thomas Marshal Curtis, Snohomish County Pros. Ofc., Everett, WA, for Respondent/Cross-Appellant.

AGID, J.

¶ 1 Edison Alphonse appeals his convictions for felony and misdemeanor telephone harassment. He challenges the sufficiency of the evidence, asserting that RCW 9.61.230 must be construed to require proof that he had the intent to harass, intimidate, torment, or embarrass when he initiated the call. He also contends that the terms "to embarrass," "lewd," "lascivious," "indecent," and "obscene" render the statute unconstitutionally overbroad on its face and vague as applied to his conduct, and that as applied, the statute violated his First Amendment right to lawfully petition a government official for redress of grievances. Finally, he challenges the trial court's order banishing him from the city of Everett as a condition of his sentence. Because an ordinary reading of RCW 9.61.230 requires only that the State prove the caller formed the requisite intent at some point during the call and, as we have previously held, the statute is neither overbroad nor vague, we affirm. But the banishment order was not narrowly tailored to serve its stated purpose, so we must vacate it.

FACTS

¶ 2 In March of 2004, Everett police officer Matt Meyers investigated a complaint made by Nina Reeves, who reported that Alphonse had been sending her harassing emails. Reeves was a married woman, who had a previous relationship with Alphonse and eventually became pregnant. After the relationship ended and Reeves reconciled with her husband, Alphonse contacted Reeves and asserted that he wanted to have a relationship with the child. Reeves told him she did not want him involved with the child, claimed that he was harassing her, and eventually contacted the Everett police.

¶ 3 Meyers called Alphonse's home in Olympia and spoke with a woman who answered the telephone. He told her that threats had been made from her computer, that Alphonse had been involved with Reeves, and that Alphonse threatened Reeves and her husband, and asked her to tell Alphonse to call him. Alphonse called Meyers back, told Meyers he was unaware of the investigation, and sent a written statement to Meyers, in which he denied threatening Reeves, suggested that her allegations were retaliatory, criticized the police department's handling of the investigation, and stated that he intended to sue. No charges were filed against Alphonse based on Reeve's complaint, and the case was closed. But Reeves did obtain a protection order against Alphonse, with which he complied.

¶ 4 In November 2005, six months after closing the investigation, Meyers received an email from Alphonse complaining about the investigation and threatening to sue the police department. In December 2005, he left an angry voice mail on Meyers' office phone in which, among other things, he told Meyers: "There was never any Matt Meyers. He never existed." and "You're dead anyway. You're dead any motherfucking way!" He also stated: "I will blow away 40 hundred cops over my kids dog. 40 hundred, let alone one, let alone one by the name of Matt Meyer." On January 11, 2006, Alphonse left two more voice mails in which he described sexual acts he wished to perform with Meyers' wife.¹ He also stated: "your daughters are in trouble. . . . Your daughters . . . [and] your wife — all of them, all of them are in motherfucking trouble."

¶ 5 The State charged Alphonse with one count of felony telephone harassment and one count of misdemeanor telephone harassment. A jury found him guilty of both charges. The trial court sentenced him to a term of four months, ordered that he have no contact with Meyers and his family, and ordered that he "not appear in the city limits of the City of Everett" unless required for "legal or judicial reasons."

I. Proof of the Caller's Intent Under RCW 9.61.230

¶ 6 Alphonse argues that Washington's telephone harassment statute, RCW 9.61.230, must be construed to require the State to prove that the caller had the intent to harass, intimidate, torment or embarrass at the time he placed the call, not at some point after the call was initiated. He relies on State v. Lilyblad,² in which Division II held that the statute was ambiguous on this element and must be construed to require the State to prove that the caller initiated the call with the requisite intent. The Lilyblad decision conflicts with our opinion in Redmond v. Burkhart,³ which held that the statute was not ambiguous and requires only that the caller form the requisite intent at some point during a telephone conversation. Applying Lilyblad, Alphonse contends that there was insufficient evidence that he had the requisite intent when he initiated the call. Alternatively, he argues that the trial court's failure to instruct the jury that the State had to prove this fact requires reversal and remand for a new trial.

¶ 7 Issues of statutory construction are reviewed de novo.⁴ Rules of statutory construction require courts to give effect to the legislature's intent and purpose.⁵ In doing so, we must first look to the plain meaning of the statute.⁶ If the statute does not define a term, we give it its ordinary and common law meaning.⁷ Only if a statute is ambiguous may we resort to aids of construction, such as legislative history.⁸ If a statute is ambiguous, we apply the rule of lenity and interpret the statute in favor of the defendant.⁹

¶ 8 The telephone harassment statute, RCW 9.61.230, provides in pertinent part:

(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:

(a) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or

. . . .

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household; is guilty of a gross misdemeanor, except as provided in subsection (2) of this section.

Subsection (2)(b) provides that one is guilty of a felony if "[t]hat person harasses another person under subsection (1)(c) . . . by threatening to kill the person threatened or any other person."

¶ 9 In Burkhart, we rejected the argument that the statute's language "make a telephone call" describes only the initiation of the call. Based on a plain reading of the statute, we concluded that "the threat describes the call," explaining:

The statute provides that no person with the intent to intimidate "shall make a telephone call . . . threatening to inflict injury." RCW 9.61.230 (Emphasis added).

The statute thus specifically proscribes the type of call prohibited, which cannot be determined until after the call has been initiated. Because a threat must necessarily occur in conversation, it is reasonable to conclude that the Legislature intended "making a call" to encompass a broader meaning than the mere initiation of the call. Thus, it follows that the term "make" as it is used in RCW 9.61.230 is a continuing, rather than a discreet, process.¹⁰

We further concluded that to interpret the statute to apply only to those calls that are dialed while the caller has the requisite intent "defies common sense," "artificially narrows the scope of the statute," and "draws an illogical distinction" between threats made by a caller who initiates the call with the requisite intent and those made by a caller who formulates the intent mid-conversation.¹¹

¶ 10 In Lilyblad, the court held that the same statutory language was ambiguous because it was subject to more than one reasonable interpretation, citing the following point of order during the Senate debate on whether to include unwanted telephone solicitation under this statute:

"The original purpose of Senate Bill No. 77 was to cover those telephone calls which were mala in se, so to speak, and actually where the intent was one of a criminal act, where they intend to actually endanger the recipient of the phone call by obscene language or by harassment or by doing things in which the premeditation is there. The intent which the person has before he picks up the phone is a criminal intent to actually endanger the recipient in some manner. Now that was the original scope and object of Senate Bill No. 77."¹²

The court then applied the rule of lenity and held that the statute must be interpreted to require the State to prove that the defendant had the requisite intent when she initiated the call. The court concluded that there was sufficient evidence that the defendant initiated the call with the requisite intent, but reversed because the trial court failed to instruct the jury to that the State had to prove this fact.¹³

¶ 11 The State asserts that Lilyblad incorrectly held that the statute is ambiguous because the statute's intent is to protect persons in their homes from being harassed over the telephone, and a caller violates this privacy regardless of whether the caller had the criminal intent when the call was dialed or developed it at some later point during the call. The State's position is supported by decisions of this court recognizing that the governmental interest behind the statute is "`protecting its residents from fear and abuse at the hands of persons who employ the telephone to torment others . . . and . . . from the intrusion of unwanted telephone calls.'"¹⁴ We have also observed that "[t]he gravamen of the offense is the thrusting of an offensive and unwanted communication upon one who is unable to ignore it."¹⁵ This is because "the telephone provides a caller substantial access into the private space of the person called," and the State penalizes those who exploit...