State v. Boettger

• Decision Date: 25 October 2019
• Docket Number: No. 115,387,115,387
• Citation: 450 P.3d 805
• Parties: STATE of Kansas, Appellee, v. Timothy C. BOETTGER, Appellant.
• Court: Kansas Supreme Court

450 P.3d 805

STATE of Kansas, Appellee,

v.Timothy C. BOETTGER, Appellant.

No. 115,387

Supreme Court of Kansas.

Opinion filed October 25, 2019.

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Luckert, J.:

The First Amendment to the United States Constitution prohibits the government from abridging our freedom of speech. But that freedom of speech is not without limits. The United States Supreme Court has recognized certain well-defined and narrowly limited categories of speech that the government may restrict and even criminally punish. One such category is that of a true threat. This appeal raises questions about what constitutes a true threat and, more specifically, whether the only way to make a true threat is to actually intend to cause fear. Timothy C. Boettger raises these questions by challenging the constitutionality of a provision in the Kansas criminal threat statute, K.S.A. 2018 Supp. 21-5415(a)(1), that allows for a criminal conviction if a person makes a threat in reckless disregard of causing fear. We hold this reckless disregard provision is unconstitutionally overbroad, and we reverse Boettger's conviction because it is based solely on that unconstitutional provision.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Boettger of one count of criminal threat for statements he made to Cody Bonham. Boettger frequented the convenience store where Bonham worked and often spoke with Bonham and another employee, Neil Iles.

On the night of the incident, Boettger came into the store and bought a cup of coffee. He spoke to Iles for a few minutes near the cash register. He told Iles he was upset because he had found his daughter's dog in a ditch. The dog had died from a gunshot wound

, and Boettger was angry the sheriff's department had not investigated. Iles recalled Boettger saying "these people ... might find themselves dead in a ditch somewhere." Iles thought Boettger was referring to the shooter. Based on past conversations, Iles knew Boettger often had an intense way of speaking and a tendency to get upset. Iles thought Boettger was no more upset than he had been in other situations, and Iles perceived Boettger's reaction as a general complaint about the sheriff's department's inaction.

Boettger walked out of the store but soon came back. At that time, Bonham was stocking a shelf in the aisle nearest to the door. Boettger and Bonham were well-acquainted, having visited between 600 and 800 times over the course of the previous four years. Boettger also knew Bonham's family. He had dated Bonham's aunt and he had known Bonham's father since high school. Boettger knew Bonham's father was a detective in the Douglas County Sheriff's Office.

Like Iles, Bonham knew Boettger had an intense way of speaking about certain subjects. But on this occasion, Bonham felt Boettger was unusually intense as he told Bonham about being upset because of what happened to his daughter's dog and the sheriff's department's failure to investigate. Boettger clenched his fists, and he was visibly shaking. Bonham further testified that Boettger spoke as he approached, saying, "You're the man I'm looking for." According to Bonham, Boettger continued by saying "he had some friends up in the Paseo area in Kansas City that don't mess around, and that I was going to end up finding my dad in a ditch." Boettger ended the conversation by saying, " ‘You remember that.’ " Iles saw Boettger speaking with Bonham but could not hear their conversation.

After Boettger left, Iles noticed that Bonham appeared to be distraught. Bonham relayed what happened and called his father to tell him about the incident. Bonham drafted an email to record the details of his conversation with Boettger and called the police to report the incident. At trial, Boettger admitted he knew Bonham's father was a member of the sheriff's department but denied threatening to harm him. He asserted Bonham was mistaken about what he said. Boettger denied mentioning friends from the Paseo area, saying instead that he had referred to friends in North Kansas City. Boettger generally claimed he had no intent to threaten anyone and did not mean Bonham or his family any harm. He felt he was on good terms with the family based on his past interactions and relationship with Bonham's father and aunt.

The district court instructed the jury a conviction required finding that Boettger "threatened to commit violence and communicated the threat with reckless disregard of the risk of causing fear in Cody Bonham." The jury convicted Boettger of one count of reckless criminal threat under K.S.A. 2016 Supp. 21-5415(a)(1). Boettger timely appealed, raising five arguments. The Court of Appeals rejected his arguments and affirmed his conviction and sentence. See State v. Boettger , No. 115,387, 2017 WL 2709790, at *1 (Kan. App. 2017) (unpublished opinion).

Boettger timely petitioned for review, raising the same five arguments he had made before the Court of Appeals. This court granted review but only on three of the issues: (1) whether the reckless form of criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad; (2) whether the reckless threat provision is unconstitutionally vague; and (3) whether the jury instruction on the elements of reckless criminal threat was clearly erroneous.

ANALYSIS

The three issues before this court all relate to Kansas' criminal threat statute, K.S.A. 2018 Supp. 21-5415(a). There, the Legislature defined "criminal threat" to include a threat to "(1) [c]ommit violence communicated with intent to place another in fear ... or in reckless disregard of the risk of causing such fear." Boettger's arguments are specific to the last portion of this definition—a threat made in reckless disregard of the risk of causing fear.

In his first two arguments, Boettger asserts the reckless criminal threat provision is both unconstitutionally overbroad and vague. Issues about the constitutionality of a statute present questions of law over which this court has unlimited review. State v. Whitesell , 270 Kan. 259, 268, 13 P.3d 887 (2000) (overbreadth and vagueness). Boettger carries the burden to establish the statute is unconstitutional. See State v. Williams , 299 Kan. 911, 920, 329 P.3d 400 (2014).

Before addressing Boettger's arguments, we must consider whether he has preserved his constitutional challenges for appellate review. Generally, a party cannot raise an issue for the first time on appeal, and Boettger did not present the arguments to the district court. See Williams , 299 Kan. at 929, 329 P.3d 400. Even so, Boettger argued to the Court of Appeals that both his overbreadth and vagueness challenges fell within recognized exceptions to the preservation rule. He specifically pointed to exceptions allowing a party to raise a constitutional argument for the first time on appeal if it presents a question of law or if consideration of it is necessary to prevent the denial of a fundamental right. See State v. Herbel , 296 Kan. 1101, 1116, 299 P.3d 292 (2013). The Court of Appeals accepted those justifications. See Boettger , 2017 WL 2709790, at *2, 5. It also concluded Boettger had standing to raise the argument that K.S.A. 2018 Supp. 21-5415(a)(1) makes unlawful constitutionally protected conduct even though he has not asserted that he himself was engaged in a protected activity. See Williams , 299 Kan. at 919, 329 P.3d 400 (holding a litigant has standing to assert overbreadth challenge that seeks to protect First Amendment rights of third parties).

The State did not cross-petition for review to ask us to consider either of these holdings. When a party does not cross-petition for review on an issue decided adversely to that party by the Court of Appeals, we deem it as settled on review. Ullery v. Othick , 304 Kan. 405, 415, 372 P.3d 1135 (2016) (Court of Appeals holding not included in petition or cross-petition for review not before this court); see Supreme Court Rule 8.03 (h)(1) (2018 Kan. S. Ct. R. 56).

We, therefore, consider his constitutional challenges to the statute.

ISSUE 1: K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad .

Boettger first argues the reckless form of criminal threat criminalizes speech protected under the First Amendment to the United States Constitution and is therefore overbroad. "[A]n overbroad statute makes conduct punishable which under some circumstances is constitutionally protected." Whitesell , 270 Kan. 259, Syl. ¶ 6, 13 P.3d 887. A party arguing a statute is overbroad must show "(1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing" constitutional applications of the law from unconstitutional ones. 270 Kan. 259, Syl. ¶ 6, 13 P.3d 887 ; see Dissmeyer v. State , 292 Kan. 37, 40-41, 249 P.3d 444 (2011) ; see also, e.g., Houston v. Hill , 482 U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (A statute "that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid".); Grayned v. City of Rockford , 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (A statute may be overbroad "if in its reach it prohibits constitutionally protected conduct.").

To determine whether the reckless disregard provision is overbroad, we must consider the scope of speech protected by the First Amendment.

1.1 First Amendment protections

The First Amendment to the United States Constitution provides: "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. This free speech protection extends to state laws through the Equal Protection Clause of the Fourteenth Amendment. See Police Dep't of Chicago...