State v. Alphonse

• Decision Date: 29 December 2008
• Docket Number: No. 58449-9-I.,58449-9-I.
• Citation: 147 Wn. App. 891,197 P.3d 1211
• Parties: STATE of Washington, Respondent, v. Edison ALPHONSE, Appellant.
• Court: Washington Court of Appeals

197 P.3d 1211

147 Wn. App. 891

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

No. 58449-9-I.

Court of Appeals of Washington, Division 1.

December 29, 2008.

Thomas Marshal Curtis, Snohomish County Prosecutor, Everett, WA, for Respondent.

Susan F. Wilk, Washington Appellate Project, Seattle, WA, for 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.

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 In our original opinion in this case, State v. Alphonse,² we rejected Alphonse's argument 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. In so doing, we relied on our decision in City of Redmond v. Burkhart³ and disagreed with Division II's decision in State v. Lilyblad.⁴ The Supreme Court granted review in Lilyblad. It rejected the rationale of both Burkhart and the Court of Appeals' Lilyblad decision but agreed with its result.⁵ It held that the telephone harassment statute "requires proof that the defendant formed the intent to harass the victim at the time the defendant initiates [sic] the call to the victim. As the trial court failed to properly instruct the jury as to this element of the crime, we reverse [Lilyblad]'s conviction."⁶ Because the trial court had instructed the jury in a way that implied that the requisite intent could be formed during the call,⁷ the court reversed. It also allowed a retrial on the charges because the defendant conceded there was sufficient evidence to support the required intent finding presented at trial.⁸

¶ 7 On October 1, 2008, the Supreme Court granted Alphonse's petition for review and remanded this case to us for reconsideration in light of its Lilyblad decision. We have done so and, while we recognize that the court has rejected the Burkhart rationale on which we relied in our original decision, we affirm Alphonse's conviction on another ground.

¶ 8 In our original decision, we considered Alphonse's argument that the "to convict" instruction was infirm because it did not require the jury to find that he formed the intent to harass when he made the calls. We rejected that argument on the ground that he requested the instruction on which he based his argument. We held that the invited error doctrine barred his challenge to the instruction.⁹ Because Alphonse cannot challenge the instruction, the premise on which the Supreme Court reversed the conviction in Lilyblad is absent. As the court held in Boyer, even where the challenge to the jury instruction raises a constitutional issue, the courts will not consider it if the defendant himself proposed the instruction.¹⁰

¶ 9 In addition, to the extent that Alphonse's challenge to the sufficiency of the evidence can be seen as somehow separate from his legal challenge to the "to convict" instruction, the evidence in this case leaves no doubt about when he formed the intent to harass and threaten Officer Meyers. The tapes of his message begin, continue and end with his expressions of immense ill will toward Meyers and his expressed intention to harm him and his family. The jury heard those tapes and transcripts of them were in evidence. There is no question that their verdict would have been the same even if the "to convict" instruction had required them to find that Alphonse had formed the intent to harass, intimidate, torment, or embarrass Meyers at the time he made the calls.

II. Facial Overbreadth: Intent to Embarrass¹¹

¶ 10 Alphonse next contends that the court's "to convict" instruction was erroneous because it permitted the jury to convict him if the jury found that he made the calls with intent to "embarrass." He argues that because similar language was found unconstitutionally overbroad in City of Seattle v. Huff,¹² the court cannot instruct the jury to convict on this basis. But as the State correctly points out, Huff did not hold that the language intent to "embarrass" in a telephone harassment ordinance was overbroad; rather the court chose to concur with the City's concession that "embarrass" should be stricken from the ordinance and in fact expressed doubts that this was constitutionally mandated.¹³ And, as the State also points out, we have since re-evaluated the constitutional sweep of the term "embarrass" as used in RCW 9.61.230 and held that the term does not render the statute unconstitutionally overbroad.¹⁴

III. Lawful Petition to Redress Grievances

¶ 11 Alphonse argues that prosecuting him for making calls that were a lawful petition to a government official for redress of grievances violated the First Amendment. He contends that the "vague allusions and sexual references" that may have affronted Meyers were not the sole or primary purpose of making the calls. Rather, he argues, he was seeking to lawfully redress his grievances and cannot be prosecuted for doing so. Alternatively, he argues that the trial court was required to instruct the jury that it had to find that the calls were made solely to harass and the failure to do so requires reversal.

¶ 12 The First Amendment provides aggrieved citizens the right to petition the government for redress and protects a significant amount of verbal criticism and challenge directed at police officers.¹⁵ In reviewing a claim that a statute as applied infringes on First Amendment rights, we conduct an independent review of the record to decide if the speech is unprotected.¹⁶

¶ 13 Alphonse asserts that the calls made to Meyers in his official capacity as a police officer and the messages left on his police department voice mail were primarily complaints about Meyers' investigation of Reeves' harassment allegations. He cites parts of the message in which the caller criticized Meyer for informing his wife that he impregnated another woman, voiced frustration that Meyers did not inform him that the investigation was concluded, expressed his belief that the investigation was racially motivated, and claimed that the unfounded investigation prevented him from seeing his son born. Alphonse contends that the fact that these grievances may have been "interspersed" with offensive language does not take them out of the realm of protected speech.

¶ 14 In support of this contention, he cites to a footnote in State v. Dyson¹⁷ suggesting that applying RCW 9.61.230 to a citizen's calls to a public official might be unconstitutional. But as we held in Dyson, the statute "regulates conduct implicating speech, not speech itself" by requiring an intent to harass, intimidate,...