State v. France

• Decision Date: 03 July 2014
• Docket Number: No. 89235–1.,89235–1.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. William Neal FRANCE, Petitioner.

180 Wash.2d 809

329 P.3d 864

STATE of Washington, Respondent,

v.William Neal FRANCE, Petitioner.

No. 89235–1.

Supreme Court of Washington,

En Banc.

July 3, 2014.

Casey Grannis, Nielsen Broman & Koch, PLLC, Attorney at Law, Seattle, WA, for Petitioner.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

MADSEN, C.J.

¶ 1 William Neal France was convicted of five counts of felony harassment and one count of witness intimidation for making multiple harassing calls to his former attorneys. Consistent with the pattern jury instructions on witness intimidation, the jury was instructed that “[a]s used in these instructions, threat also means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.” Clerk's Papers (CP) at 40 (Instruction 9) (emphasis added); see 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.24, at 71–72 (3d ed.2008) (WPIC). There was no evidence presented that France, who was in jail when he made the calls, intended immediately to use force against any person present at the time of the charged conduct. France contends under the law of the case doctrine, his felony harassment convictions must be dismissed. The State argues that the instructions, taken as a whole, accurately informed the jury of the elements of felony harassment and that it presented sufficient evidence to sustain France's convictions. We agree, and affirm.

FACTS

¶ 2 In 2010, attorney Anita Paulsen represented William Neal France in a prior case that resulted in France receiving a drug offender sentencing alternative. After sentencing in that case, France began leaving obscene and threatening voicemails for Paulsen and Nina Beach, a social worker involved in the case. Paulsen's supervisor, Lisa Duagaard, sent France a letter telling him to stop making harassing calls. France did not heed the request and began calling Duagaard as well. In November 2011, France pleaded guilty to nine counts of felony harassment and received an exceptional sentence of 180 months. State v. France, 176 Wash.App. 463, 308 P.3d 812 (2013), review denied,179 Wash.2d 1015, 318 P.3d 280 (2014); CP at 1, 5. The November 2011 judgment and sentence incorporated a no contact order directing France to have no contact with Paulsen, Beach, and Duagaard. France, 176 Wash.App. at 466, 473–74, 308 P.3d 812.

¶ 3 Within hours of being sentenced, France left more threatening voice mails for Duaggard and Paulsen. Based on these and other calls, in December 2011 France was charged with five more counts of felony harassment under RCW 9A.46.020. After the jury had been selected but before opening statements, the State amended the information to add a witness intimidation charge under RCW 9A.72.110.

¶ 4 At trial, the State offered the testimony of Paulsen and Duaggard and played recordings of some of the voice mails for the jury. Among other things, the jury was instructed that

[a] person commits the crime of harassment when he, without lawful authority, knowingly threatens maliciously to do any act which is intended to substantially harm another person with respect to his or her physical health or safety and when he or she by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

CP at 37 (Instruction 6). Consistent with instruction 6, the to-convict instructions on felony harassment instructed the jury that to convict France of felony harassment it must find beyond a reasonable doubt that France (among other things):

(1) .... knowingly threatened:

(a) maliciously to do any act which was intended to substantially harm [the victims] with respect to [their] physical health or safety; and

(2) That the words or conduct of the defendant placed [the victims] in reasonable fear that the threat would be carried out.

Id. at 38 (Instruction 7). The other four felony harassment to-convict instructions used the same language. The witness intimidation to-convict instruction said in relevant part that the State must prove “[t]hat on or about December 27, 2011, the defendant by use of a threat against a current or prospective witness attempted to induce that person to absent herself from an official proceeding.” Id. at 48 (Instruction 17). The jury was also instructed that

[a]s used in these instructions, threat also means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.

To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat.

Id. at 40 (Instruction 9) (emphasis added). The jury convicted on all six charges. France received another exceptional sentence, this time for 120 months.

¶ 5 France appealed, making several arguments, including that there was insufficient evidence of “threat” as defined by the jury instructions to sustain his convictions because there was no evidence he intended to immediately use force against someone present. Br. of Appellant at 1, 9–10. The State contended that instruction 9's definition of “threat” was “superfluous with regard to the felony harassment charges, because ‘threat’ is already defined within the essential elements of that crime.” Br. of Resp't at 13. However, the State suggested that “such is not the case with regard to witness intimidation” and it “concede[d] that France is correct that count VI [witness intimidation] must be reversed and dismissed.” Id. at 12–13. The Court of Appeals accepted the State's concession and otherwise affirmed the convictions, finding that instruction 9 did not add an element of felony harassment that the State was required to prove. State v. France, noted at 175 Wash.App. 1024, 2013 WL 3130408, at *4–5, *7 (Wash.Ct.App. June 17, 2013).¹

¶ 6 France petitioned for review of one issue: “Whether the convictions must be reversed due to insufficient evidence under the ‘law of the case’ doctrine?” Pet. for Review at 1. We granted France's petition and now affirm.

ANALYSIS

¶ 7 This case is framed by two fundamental principles of law: the first constitutional, the second arising from the nature and exigencies of appellate review. The first principle is that constitutional due process requires that the State prove every element of the crime beyond a reasonable doubt. State v. Warren, 165 Wash.2d 17, 26, 195 P.3d 940 (2008) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). The second principle is that “jury instructions not objected to become the law of the case.” State v. Hickman, 135 Wash.2d 97, 102, 954 P.2d 900 (1998) (citing State v. Hames, 74 Wash.2d 721, 725, 446 P.2d 344 (1968)). If the jury is instructed (without objection) that to convict the defendant, it must be persuaded beyond a reasonable doubt of some element that is not contained in the definition of the crime, the State must present sufficient evidence to persuade a reasonable jury of that element regardless of the fact that the additional element is not otherwise an element of the crime. Id. (citing State v. Lee, 128 Wash.2d 151, 159, 904 P.2d 1143 (1995)).²

¶ 8 France argues that his convictions must be reversed under the law of the case doctrine because the first paragraph of instruction 9 defined “threat” in a way that the evidence did not support. The State argues that other instructions, including the felony harassment to-convict instructions, contained definitions of “threat” that were amply supported by the evidence. We agree with the State.

¶ 9 All of the elements of the charged crime must appear in the to-convict instruction “ ‘because it serves as a yardstick by which the jury measures the evidence to determine guilt or innocence.’ ” State v. Johnson, 180 Wash.2d 295, 306, 325 P.3d 135 (2014) (internal quoting marks omitted) (quoting State v. Sibert, 168 Wash.2d 306, 311, 230 P.3d 142 (2010)). Where an erroneous to-convict instruction creates a new element of the crime, the instruction will become the law of the case and the State will be required to prove that element. Hickman, 135 Wash.2d at 101, 954 P.2d 900 (requiring State to prove venue under law of the case doctrine—even though venue was not a statutory element of insurance fraud—because the State did not object to an erroneous to-convict instruction informing the jury it must find beyond a reasonable doubt “ ‘[t]hat the act occurred in Snohomish County, Washington’ ” (emphasis omitted)). No party in this case argues that the elements listed in the to-convict instructions were erroneous or were not supported by the evidence presented. Instead, France contends that the law of the case doctrine applies to all instructions and thus we must reverse his conviction unless the State presented sufficient evidence that he “communicate [d], directly or indirectly, the intent immediately to use force against any person who is present at the time.” CP at 40 (Instruction 9). In other words, he argues that intent to immediately use force against a person who is present at the time of the threat is a fact that must be proved by virtue of the law of the case doctrine.

¶ 10 France is correct that the law of the case doctrine applies to all unchallenged instructions, not just the to-convict instruction. Tonkovich v. Dep't. of Labor & Indus., 31 Wash.2d 220, 225, 195 P.2d 638 (1948) (noting that “the sufficiency of the evidence to sustain the verdict is to be determined by the application of the instructions and rules of law laid down in the charge”); accord City of Spokane v. White, 102 Wash.App. 955, 964–65, 10 P.3d 1095 (2000); State v. Price, 33 Wash.App. 472, 474–75, 655 P.2d 1191 (1982); Englehart v. Gen. Elec. Co., 11 Wash.App. 922, 923, 527 P.2d 685 (1974). But “[e]ach instruction must...