State v. Dyson

Decision Date16 May 1994
Docket NumberNo. 29319-2-I,29319-2-I
Citation872 P.2d 1115,74 Wn.App. 237
PartiesSTATE of Washington, Respondent, v. Richard A. DYSON, Appellant.
CourtWashington Court of Appeals

Matthew Miller and Theresa Doyle of Washington Appellate Defender Association, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Michael Lang, Deputy, Seattle, for respondent.

PEKELIS, Acting Chief Justice.

Richard Dyson (Dyson) appeals his conviction for one count of telephone harassment pursuant to RCW 9.61.230, arguing that: (1) RCW 9.61.230(1) and RCW 9.61.230(2) are unconstitutionally overbroad; (2) RCW 9.61.230(2) is unconstitutionally vague; (3) the evidence was insufficient to support each of the alternate means of proving telephone harassment; and (4) he was denied his constitutional right to a unanimous jury verdict. We affirm.

The facts leading up to Dyson's conviction began in 1980 when Dyson met Beverly Larson (Larson) with whom he became involved in a romantic relationship that lasted approximately 4 years. Apparently unable to accept the fact that the relationship had ended, Dyson began to harass Larson. Although the record does not contain Dyson's entire criminal history, it does show that between 1985 and 1986 Dyson was once convicted of misdemeanor telephone harassment and three times convicted of violating a no contact order. For each of these convictions, Larson was his victim. In order to avoid Dyson, Larson moved twice and changed her unlisted telephone number several times. Larson also began screening her calls via a telephone answering machine, which enabled her to hear the message as it was recorded.

Between January 8 and January 11, 1991, Larson received approximately 50 telephone calls, which were recorded on the answering machine. In many calls, Dyson's voice is heard on the answering machine tape. Interspersed between messages were multiple hang up calls. In some calls, Dyson used vituperative language and threatened Larson and her family. For instance, in one call Dyson stated:

Wednesday, 5:28 p.m. Bev, me, Ray. Yeah, I'll show you what smart is. You know you can't use any of this in court because you have to have permission from someone to be recorded ... You want your whole family to suffer, Maria, your whole family, 'cause I've got them targeted.

Just keep fucking with me, the way you're doin....

Between February 7 and February 8, 1991, Larson received approximately 15 more calls from Dyson, which were similar in nature to those she had received earlier.

By amended information, Dyson was charged with one count of harassment, which was later dismissed, and one count of telephone harassment.

At trial, Larson testified that she recognized Dyson's voice on the answering machine tapes, which were played in court. She also testified that she was not at home on January 10, 1991, when the answering machine recorded 28 calls between the hours of 1:44 a.m. and 2:47 a.m. On cross examination, Larson denied threatening Dyson and denied editing the tapes.

Dyson testified that he had gone out with Larson socially more than two dozen times in 1990. Dyson testified that Larson had made several late night calls to him in 1991, which he considered to be threatening and harassing. For instance, he testified that she had threatened to use the legal system against him. He testified that he did not call her to threaten harm to her or her family, but "to get her to knock ... off" her threats.

Over the defendant's objection, the jury was instructed:

To convict the defendant Richard Dyson of the crime of telephone harassment ... each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That during the period of time intervening between the 8th day of January, 1991 and the 8th day of February, 1991, the defendant with intent to harass, intimidate or torment made a telephone call to Beverly Larson;

(2) That during such telephone call the defendant either:

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

(b) telephone anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensued; or

(c) threatened to inflict injury on the person or property of the person called or any member or her family; and

(3) That the acts occurred in King County, Washington.

If you find from the evidence that elements (1) and (3) and either (2)(a) or (2)(b) or (2)(c) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (2)(a), (2)(b) and (2)(c) are alternatives and only one need be proved. You need not be unanimous as to which of those alternatives is proved.

(Emphasis ours.)

The jury convicted Dyson as charged. Dyson received a standard range sentence.

Dyson appeals.

I

OVERBREADTH OF RCW 9.61.230(1)

and RCW 9.61.230(2)

Dyson contends that two subsections of Washington's telephone harassment statute, RCW 9.61.230(1) and (2), are unconstitutionally overbroad. 1

RCW 9.61.230 provides:

Every person who, with intent to harass, intimidate, torment or embarrass 2 any other person, shall make a telephone call to such other person:

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

(2) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or

(3) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

In the First Amendment context, a statute is void as overbroad if it sweeps constitutionally protected free speech activities within its prohibitions and no means exist by which to sever its unconstitutional applications. State v. Talley, 122 Wash.2d 192, 210, 858 P.2d 217 (1993); Seattle v. Huff, 51 Wash.2d 12, 751 P.2d 879 (1988), aff'd, 111 Wash.2d 923, 925, 767 P.2d 572 (1989) (citing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940)). "[T]he concern with an overbroad statute stems ... from the possibility that the threat of its application may deter others from engaging in otherwise protected expression." CISPES v. Federal Bureau of Investigation, 770 F.2d 468, 472 (5th Cir.1985) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). However, when used to invalidate a statute on its face, the overbreadth doctrine has been held "strong medicine" to be applied "only as a last resort." Talley, 122 Wash.2d at 210, 858 P.2d 217 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916-17, 37 L.Ed.2d 830 (1973)).

In Seattle v. Huff, 111 Wash.2d at 925-26, 767 P.2d 572, the Washington Supreme Court set out the overbreadth analysis in the context of determining the constitutionality of a subsection of a municipal telephone harassment ordinance identical to RCW 9.61.230(3). When analyzing a statute for overbreadth, the key determination is "whether the enactment reaches a substantial amount of constitutionally protected conduct." Huff, at 925, 767 P.2d 572. However, even if the statute does proscribe a substantial amount of protected conduct, speech in nonpublic forums, including speech over the telephone, may be restricted if it is found that " 'the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.' " Huff, at 927, 767 P.2d 572 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985)).

The Huff court concluded that the challenged subsection was not overbroad. Huff, at 928, 767 P.2d 572. Although the court found that the statute's prohibition against "threats" proscribed a substantial amount of protected speech, the court found that the prohibition against threats to harm a person or property made over the phone with the requisite intent was reasonable and viewpoint neutral. Huff, at 926-27, 767 P.2d 572.

Our primary inquiry in determining whether RCW 9.61.230(1) is overbroad is whether the subsection's prohibition against the use of "lewd, lascivious, profane, indecent, or obscene words or language" in a telephone call when done with the requisite intent reaches a substantial amount of constitutionally protected conduct.

First, we note that RCW 9.61.230(1) regulates conduct implicating speech, not speech itself. See Talley, 122 Wash.2d at 210, 858 P.2d 217 (upholding a subsection of the malicious harassment statute against an overbreadth challenge because it primarily regulated conduct and its "incidental impact" on speech was minimal). Although RCW 9.61.230(1) contains a speech component, it is clearly directed against specific conduct--making telephone calls with the intent to harass, intimidate, or torment another while using lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act. Because the requisite intent establishes the criminality of the communicative conduct, any impact that RCW 9.61.230(1) has on speech is insubstantial. 3

Moreover, the level of constitutional protection given to "lewd, lascivious, profane, indecent, or obscene words or language" is minimal at best. It has long been recognized that certain classes of speech are not entitled to first amendment protection, including "the lewd and obscene, the profane, the libelous and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." 4 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1036 (1942).

Although "indecent" speech has received some level of constitutional protection, see Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 123-24, 109 S.Ct. 2829, 2835, 106 L.Ed.2d 93 (1989), the statute's impact on "indecent" speech is not...

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