State v. Avila

• Decision Date: 12 October 2000
• Docket Number: No. 18515-0-III.,18515-0-III.
• Citation: 102 Wash.App. 882,10 P.3d 486
• Parties: STATE of Washington, Respondent, v. Wilson AVILA, Appellant.
• Court: Washington Court of Appeals

10 P.3d 486

102 Wash.App. 882

STATE of Washington, Respondent, v. Wilson AVILA, Appellant.

No. 18515-0-III.

Court of Appeals of Washington, Division 3, Panel Five.

October 12, 2000.

Jeffrey C. Barker, Wenatchee, for Appellant.

Nancy A. Harmon, Deputy Prosecuting Attorney, Waterville, for Respondent.

BROWN, J.

Juvenile Wilson Avila was convicted of intimidating his teacher, violating RCW 28A.635.100. We decide an implied element of the charge is intent to make a threat, not intent that the threat be conveyed. However, because of the language of the statute, we decide further that the threat must actually intimidate the victim. Although we decide the evidence is sufficient to support and affirm Mr. Avila's conviction, pursuant to controlling case law, we vacate the sentence and remand for entry of the necessary ultimate findings and resentencing.

FACTS

Fifteen-year-old Wilson Avila attended public school in Waterville. In January 1999, Mr. Avila left a derogatory note on the desk of his teacher, Kenneth Kimes. In response, Mr. Kimes wrote a referral slip reporting Mr. Avila's misconduct. Another student, Jami Riddell, escorted Mr. Avila to the principal's office with the referral.

On the way, Mr. Avila told Ms. Riddell that if the referral was for him, saying he was not doing his "f_____g" work, he was going to "blow off Mr. Kimes' f_____g head." After leaving Mr. Avila at the principal's office, Ms. Riddell told Mr. Kimes what Mr. Avila said. Later in the day, Mr. Avila made a similar statement to another classmate, Starrla Scharpp. Ms. Scharpp told Mr. Avila she was going to tell Mr. Kimes. Mr. Avila replied he did not care. Ms. Scharpp then told Mr. Kimes. Mr. Kimes reported the incident to the school administrator and to law enforcement. Mr. Kimes was concerned whether Mr. Avila "was going to do what he said he was going to do." The day after the incident, Mr. Avila admitted making the statements when questioned by Douglas County Deputy Sheriff Michael Robins. Mr. Kimes also sought a restraining order against Mr. Avila.

The State charged Mr. Avila with one count of intimidating a school administrator or teacher, RCW 28A.635.100. Following a bench trial, the juvenile court commissioner found Mr. Avila guilty. The juvenile court sentenced Mr. Avila to 6 months of community supervision and 24 months of community service. But before it imposed sentence, it appears the trial court failed to give Mr. Avila an opportunity to speak.

Mr. Avila appealed.

ANALYSIS

A. Elements

The issues are whether the trial court erred in concluding it was unnecessary for the State to establish that Mr. Avila intended to convey his threats to Mr. Kimes and then deciding the evidence was sufficient to support each element of intimidating Mr. Kimes under RCW 28A.635.100.

The first issue turns on the correct interpretation of RCW 28A.635.100. The standard of review is de novo. State v. Azpitarte, 140 Wash.2d 138, 140-41, 995 P.2d 31 (2000). It appears no appellate court has discussed this statute, or its former version codified as RCW 28A.87.231.

RCW 28A.635.100 states:

It shall be unlawful for any person, singly or in concert with others, to intimidate by threat of force or violence any administrator, teacher, classified employee, or student of any common school who is in the peaceful discharge or conduct of his or her duties or studies.

Violation of RCW 28A.635.100 is a gross misdemeanor subject to a fine of not more than $500, or imprisonment of not more than six months, or both. RCW 28A.635.120.

When interpreting a statute, the reviewing court strives to give effect to the Legislature's intent. Hubbard v. Dep't of Labor & Indus., 140 Wash.2d 35, 43, 992 P.2d 1002 (2000). The appellate court reads each provision of the statute in relation to each other and construes the statute as a whole. Id. at 43, 992 P.2d 1002. And unless there is ambiguity, this court derives the meaning of the statute from its language alone. Azpitarte, 140 Wash.2d at 142, 995 P.2d 31.

Mr. Avila contends RCW 28A.635.100 is ambiguous as to the intent requirement because it uses the words "to intimidate." We agree. A statute is ambiguous if susceptible to more than one reasonable interpretation. Western Telepage, Inc. v. City of Tacoma, 140 Wash.2d 599, 608, 998 P.2d 884 (2000).

The statute does not define "intimidate." The common meaning of intimidate is "to make timid or fearful: inspire or affect with fear: FRIGHTEN." Webster's Third New International Dictionary 1184 (1993). The term "intimidate" is somewhat ambiguous; it "suggests a display or application (as of force or learning) so as to cause fear or a sense of inferiority and a consequent submission." Webster's, supra, 1184 (emphasis added). Consequently, according to the common meaning of the term, an intimidated teacher or administrator need not necessarily feel threatened in the physical sense; a feeling of inferiority or timidness could constitute intimidation.

RCW 28A.635.100 also uses the term "threat." A threat could be either "an indication of something impending and usu[ally] undesirable or unpleasant," or an "expression of an intention to inflict loss or harm on another by illegal means and esp. by means involving coercion or duress of the person threatened[.]" Webster's, supra, 2382. The statute qualifies threat by requiring the threat be one "of force or violence."

"Violence" includes numerous definitions. Webster's, supra, 2554. "Force" also elicits too many disparate meanings to list here, but they run the gamut from "power, violence, compulsion, or constraint exerted upon or against a person or thing" to "the quality of conveying impressions intensely in writing or speech." Webster's, supra, 887.

Read broadly, the statute could apply to a student who intimidates his or her teacher by threatening to openly ridicule the teacher's professional qualifications. Or a student could be guilty of intimidation if he or she threatens to blow off his or her teacher's head. Hence, the plain language of the statute is ambiguous as to the prohibited activity.

"An ambiguous statute is subject to construction." State v. Bash, 130 Wash.2d 594, 601, 925 P.2d 978 (1996) (citing Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996)). "Where a statute is amenable to more than one interpretation, legislative history and other aids to construction may provide guidance in construing the statute to give effect to the intent of the Legislature." Bash, 130 Wash.2d at 601, 925 P.2d 978 (citing Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 185, 829 P.2d 1061 (1992)).

Resort to the legislative history reveals RCW 28A.635.100 originated as part of a response to campus disruptions during the Vietnam War era. House Bill No. 162, Laws of 1970, ch. 98 (related to "civil disturbances" at both institutes of higher learning and public schools). The two operative sections of the statute prohibited interference (Section 1) and intimidation (Section 2).

Section 1 of House Bill No. 162, later codified as RCW 28B.10.570, states:

It shall be unlawful for any person, singly or in concert with others, to interfere by force or violence with any administrator, faculty member or student of any university, college, community college or public school who is in the peaceful discharge or conduct of his duties or studies.

Section 2, later codified as RCW 28B.10.571, states:

It shall be unlawful for any person, singly or in concert with others, to intimidate by threat of force or violence any administrator, faculty member or student of any university, college, community college or public school who is in the peaceful discharge or conduct of his duties or studies.

Certain representatives proposed and failed to pass an amendment inserting the word "willfully" between "interfere" and "by force" in Section 1 and between "to" and "intimidate" in Section 2.1970 House Journal 251-52.

In 1971, the Legislature amended the two statutes and enacted separate and virtually identical provisions pertaining to public schools. Laws of 1971, ch. 45. Apart from some minor amendments, these statutes have remained unchanged. Thus, RCW 28A.635.100 owes its existence to an older counterpart statute, RCW 28B.10.571, enacted in response to campus disturbances.

A legal commentator analyzed the original campus disturbance statutes soon after their enactment. See Note: Statutory Control of Campus Disorder in Washington: Effect of R.C.W. §§ 28B.10.570-.573 (1970), 47 Wash. L.Rev. 501 (1972). Regarding intent, the commentator reasoned "since the conduct prohibited is malum in se, as distinguished from an offense malum prohibitum, the statute implicitly requires that the actor have a guilty mind to be held criminally responsible." Note, supra, 47 Wash. L.Rev. at 502 (footnote omitted).

In connection with the clause "to intimidate by threat of force or violence," the commentator proposed three necessary elements. First, a threat in the sense of a "`declaration of one's purpose or intention to work injury to the person, property or rights of another.'" Note, supra, 47 Wash. L.Rev. at 503 (quoting State v. Cushing, 17 Wash. 544, 555, 50 P. 512 (1897)). Second, "the threat must be of force or violence." Note, supra, 47 Wash. L.Rev. at 503. And third, "the law requires that the force or violence threatened must actually intimidate an administrator, faculty member, or student." Note, supra, 47 Wash. L.Rev. at 503-04.

The writer went on to note that "intimidation may be difficult to prove, since it is defined by the criminal law as `putting in fear.'" Note, supra, 47 Wash. L.Rev. at 504 (quoting Armstrong v. Ellington, 312 F.Supp. 1119 (W.D.Tenn.1970); Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930)). "Even though the actor's conduct may annoy or perturb some, punishment under the statute would not be justified without a showing of actual interference or a `putting in fear.'" Note, supra, 47 Wash. L.Rev. ...