State v. Edwards

• Decision Date: 18 October 1996
• Docket Number: No. 18325-1-II,18325-1-II
• Citation: 924 P.2d 397,84 Wn.App. 5
• Parties: The STATE of Washington, Respondent, v. Manuel Paul EDWARDS, Appellant.
• Court: Washington Court of Appeals

Page 5

84 Wn.App. 5

924 P.2d 397

The STATE of Washington, Respondent, v. Manuel Paul EDWARDS, Appellant.

No. 18325-1-II.

Court of Appeals of Washington,

Division 2.

Oct. 18, 1996.

Bradley W. Andersen, Stevenson, for Respondent

R.A. Lewis, Knapp O'Dell & Lewis, Camas, for Appellant.

TURNER, Judge.

A jury convicted Edwards of threatening

to injure property in violation of RCW 9.61.160. On appeal he challenges the sufficiency of the evidence, the trial court's instructions, and the constitutionality of the statute. We hold that there is sufficient evidence of the threat to injure property. We also conclude that the trial court properly instructed the jury on the elements of the offense. Finally, we uphold the constitutionality of RCW 9.61.160. Because the statute does not reach a real and substantial amount of protected speech, it is not facially invalid. Accordingly, we affirm Edwards's conviction.

FACTS

Edwards telephoned the Skamania County Sheriff's Office and spoke with the dispatcher. Edwards said that he was phoning from a pay phone located at the front of the Main Street convenience store in Stevenson, Washington. He was upset and angry with store employees for telephoning his relatives. Edwards told the dispatcher that if the employees harassed his family, he would burn the Main Street store down. He explained that this was not a threat but a fact. The dispatcher sent two deputies to contact Edwards. They arrested Edwards one block away from the store. At trial, Edwards testified that when he left the store, he muttered something about getting revenge on the store to a passerby. He said he was afraid that the passerby would misconstrue the statement and call the police, so he called the sheriff's office to tell them he was not going to harm anyone.

Edwards was charged with one count of threatening to injure property in violation of RCW 9.61.160. At the close of the State's case, Edwards moved to dismiss the charge for insufficient evidence. The trial court denied the motion. Ultimately, the jury returned a verdict of guilty. Edwards appeals the conviction.

ANALYSIS

A. Sufficiency of Evidence.

Edwards claims that the evidence introduced at trial was insufficient to support his conviction for threatening to injure property under RCW 9.61.160. ¹ He claims that the evidence failed to prove: (1) that he made a threat within the meaning of RCW 9.61.160 and 9A.01.110(25); (2) that he made a "true threat;" and (3) that he acted with the requisite intent. We hold that sufficient evidence supports the conviction.

RCW 9.61.160 prohibits threats of bodily injury or damage to property:

It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy; or to communicate or repeat any information concerning such a threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated.

RCW 9.61.160. The statute criminalizes two different things, in two separate clauses. The first clause makes it unlawful to threaten to bomb or otherwise injure certain places or things. The second clause makes it unlawful to communicate or repeat information regarding a threatened bombing or injury, knowing that the information is false and intending to alarm the listener. The first clause does not require any specific intent; it merely requires proof of the threat. In contrast, the second clause requires (1) knowledge of the falsity of the information and (2) an intent to alarm the listener. We are not concerned with the second clause here as Edwards was charged and convicted of violating only the first of these clauses.

1. Threat

a. Future and Conditional Threats

Edwards first argues that the term "threaten" in RCW 9.61.160 does not include either a future threat or a conditional threat. He says because the threat he made was both future and conditional, the evidence was insufficient to convict him. To support his argument, Edwards relies on RCW 9A.04.110(25)(a-b), which defines a threat to cause bodily injury differently than a threat to injure property:

"Threat" means to communicate, directly or indirectly the intent:

(a) To cause bodily injury in the future to the person threatened or to any other person; or

(b) To cause physical damage to the property of a person other than the actor; ...

RCW 9A.04.110(25). Edwards asserts that because the phrase "in the future" was omitted from the definition of threat to injure property, the Legislature did not intend to criminalize threats to injure property in the future.

We disagree. Such an interpretation would be at odds with the common meaning of "threaten." RCW 9.61.160 does not define "threaten." Where a term used in a statute is not defined therein, we may rely on the ordinary meaning of the term. See State v. Brown, 50 Wash.App. 405, 409, 748 P.2d 276 (1988). The ordinary meaning of "threaten" clearly includes what Edwards refers to as future threats. Webster's Third New International Dictionary (1969), defines threat as "an indication of something impending and ...: a: an expression of an intention to inflict evil, injury, or damage on another ... as retribution or punishment for something done or left undone...." It is implicit in the term "threaten" that the injury or damage to property will occur in the future. Websters defines intent as, among other things, "the design or purpose to commit any wrongful or criminal act...." An intent to cause physical damage to property necessarily involves a future act. Clearly, when one threatens to do something, he or she is not doing that thing at the time of communicating the threat. Rather, the person making the threat communicates an intent to injure a person or property sometime in the future, immediate or remote.

Because the term "threaten" logically includes the communication of an intent to injure property in the future and because Edwards admittedly threatened to burn down the Main Street convenience store, sufficient evidence supported Edwards's conviction.

We similarly reject Edwards's contention that the statute does not criminalize conditional threats but only present threats to cause immediate harm to property. Edwards claims State v. Young, 83 Wash.2d 937, 942, 523 P.2d 934 (1974), stands for the proposition that RCW 9.61.160 applies only to present threats. We disagree with Edwards's reading of Young.

In Young, the defendant argued that his conviction for threatening to injure a public building was an unconstitutional abridgment of his right to free speech. The court rejected this claim because the cases cited by the defendant dealt with statutes that prohibited advocating the use of force and were not on point. To contrast advocating force from actually threatening, the court stated, "[t]he conduct prohibited here is an expression of a present threat or intent ...." Young, 83 Wash.2d at 941-42, 523 P.2d 934 (emphasis added). The quote related to the defendant's constitutional argument and cannot be read to refine the definition of threaten under RCW 9.61.160. Moreover, the court's use of the disjunctive "or" indicates that the expression of either a present threat or an intent to injure suffices. Young does not require a "present intent" to injure property.

We hold that a conditional threat to injure property is within the RCW 9A.04.110(25)(b) definition of "threat": that is, "to communicate ... the intent ... [t]o cause physical damage to the property of a person...." Neither the language of RCW 9.61.160 or 9A.04.110(25) nor any case law supports Edwards's contention that the State must prove a non-conditional present threat. Because this is not an element of the offense, the evidence is not insufficient.

b. True Threat

Edwards also asserts that the evidence is insufficient to support his conviction because the State failed to prove that his threat was a "true threat." Again, we reject his challenge. The law does not require proof of a "true" threat for the purposes of RCW 9.61.160. The prohibited criminal activity is the communication of the intent to injure. The actor's hidden intentions about actually carrying out the threat are irrelevant. Accordingly, the evidence of a threat is sufficient to support Edwards's conviction.

2. Intent.

Edwards next contends that his conviction should be reversed because the State failed to prove the second clause of RCW 9.61.160: that Edwards acted "knowing such information to be false, and with intent to alarm the person or persons to whom the information is communicated or repeated." RCW 9.61.160. We reject this contention because Edwards was charged under the first clause of RCW 9.61.160 and intent is not an element of the first clause.

In Brown, 50 Wash.App. at 410-11, 748 P.2d 276, the court's analysis explicitly assumes that the first part of RCW 9.61.160 did not require an intent to alarm. The Legislature's failure to amend RCW 9.61.160 in light of Brown suggests a legislative intent to omit an intent requirement. See State v. Bailey, 41 Wash.App. 724, 727, 706 P.2d 229 (1985) (where the Legislature does not amend a criminal statute after judicial construction of such statute, it is presumed that the Legislature agrees with the judicial construction of the statute). Accordingly, Edwards's conviction is not assailable for lack of intent evidence.

Nor does the first part of RCW 9.61.160 require actual intent to injure. In State v. Kepiro, 61 Wash.App. 116, 810 P.2d 19 (1991), the court analyzed an analogous statute, RCW 9A.72.160, ² which criminalizes intimidation of judges. Kepiro argued that the statute contained an implied element of intent to harm or reasonably cause alarm. The Court of Appeals disagreed, holding that "RCW 9A.72.160 contains no...