State v. GS

• Decision Date: 29 January 2001
• Docket Number: No. 45352-1-I.,45352-1-I.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. G.S., Appellant.

17 P.3d 1221

104 Wash.App. 643

STATE of Washington, Respondent, v. G.S., Appellant.

No. 45352-1-I.

Court of Appeals of Washington, Division 1.

January 29, 2001.

Eric J. Nielsen, Seattle, for Appellant.

Michael James Smith, King County Prosecutors Office, Seattle, for Respondent.

COX, J.

We must decide whether the subsection of the harassment statute stating that a threat "to cause bodily injury ... to the person threatened or to any other person" establishes two alternative means of violating the statute.¹ Also at issue is whether there was sufficient evidence to support the adjudication of guilt.

We hold that RCW 9A.46.020(1)(a)(i) defines a single means, not two alternative means, of committing harassment. But the information in this case stated a charge for which insufficient evidence was adduced at the adjudication hearing. Accordingly, we reverse and dismiss.

In the spring of 1999, Tina Myrick, a school bus driver, picked up G.S. from the Westside Place School in Seattle. Myrick testified that G.S. appeared angry when he entered the bus, slamming the door before sitting down. Myrick asked him what was going on. He explained that another student was picking on him and had ripped his shirt. G.S. said that he wanted to get even by getting a gun and shooting the student. Myrick cautioned G.S. that his comments were inappropriate. In response, his demeanor improved and he changed the subject. Myrick did not report the conversation to anyone at that time because G.S. appeared happy by the time he got home.

When Myrick picked G.S. up from school the following day, he again appeared angry. He had been in a fight with another student. G.S. stated that he was tired of being picked on, was tired of the whole school, and he wanted to get a gun and "shoot the place up." Myrick was concerned for the safety of those at the school, and reported the threats to a school administrator.

The State filed an information in juvenile court charging G.S. with felony harassment. Following an adjudication hearing, the trial court found G.S. guilty of that charge.

G.S. appeals.

Alternative Means of Committing Harassment

G.S. argues that he was tried and convicted for an uncharged statutory alternative means. We disagree.

The section of the statute at issue provides for only one means of committing harassment, not two. The State charged G.S. with violating the criminal harassment statute, RCW 9A.46.020. It provides, in pertinent part, as follows:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

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

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

(iii) To subject the person threatened or any other person to physical confinement or restraint; or

(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.²

The information alleged that G.S. "knowingly and without lawful authority, did threaten to cause bodily injury immediately or in the future to Tina Myrick, by threatening to kill students of Westside Place Alternative School, and the words or conduct did place said person in reasonable fear that the threat would be carried out ..." At issue is whether this awkwardly worded charge omits a statutory alternative means of violating the statute.

G.S. argues that RCW 9A.46.020(1)(a)(i), provides for two alternative means of committing harassment. G.S. asserts that the first means is threatening bodily injury "to the person threatened." The second, he argues, is threatening bodily injury "to any other person." He maintains that the information charges him only with the former alternative, but that the State presented no evidence that G.S. threatened Myrick with bodily injury. Rather, the only evidence related to "any other person"—an uncharged statutory alternative.

The State may not try a defendant for an uncharged offense.³ The remedy for such a violation is reversal.⁴ In considering a statute, we must "assume that the legislature means exactly what it says,"⁵ and we will "give words their plain and ordinary meaning."⁶ We will read each statute as a whole, to give effect to all language and to harmonize all provisions.⁷

The most natural reading of RCW 9A.46.020(1)(a) shows that the Legislature created four alternative means by which someone violates the criminal harassment statute. The statute sets forth four types of threatening behaviors that constitute harassment, each of which is in a subsection separated from the others by the disjunctive "or." Thus, a person may commit criminal harassment by threatening "bodily injury," "physical damage to property," "physical confinement or restraint," or "[m]aliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety."⁸

At issue here is whether the first of these four alternative means, knowingly threatening "to cause bodily injury immediately or in the future to the person threatened or to any other person," is one means or two.⁹ G.S. argues that threatening to cause bodily injury either "to the person threatened" or "to any other person," creates two means.

In support of his argument on this point, G.S. relies on our decision in State v. Roche.¹⁰ In Roche, we concluded that the robbery statute creates two alternative means by which an individual may commit that offense. The portion of the robbery statute at issue in Roche provided as follows:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.¹¹

Interpreting the above language, we determined that an individual may commit robbery by the alternative means of taking property "from the person of another" or by taking property "in his presence."¹²

In response, the State argues that the mere presence of the disjunctive "or" between the terms "person threatened" and "any other person" does not necessarily create an alternative means of committing harassment. For support, the State cites State v. Martinez.¹³ There, we held that Washington's extortion statute does not provide for two alternative means by which to commit the offense. The statute provides, in pertinent part, that "[e]xtortion' means knowingly to obtain or attempt to obtain by threat property or services of the owner...."¹⁴ Upon reading the statute, this court concluded that "[t]o `obtain or attempt to obtain' is one and the same crime, committed by a single means: the making of the extorsive threat."¹⁵

Here, although the terms "person threatened" and "any other person" are separated by the disjunctive "or," that is not dispositive.¹⁶ We held in Roche that taking property "from the person of another" or taking property "in his presence," were two alternative means. But the structure of the statute at issue in that case differs significantly from that of the harassment statute. RCW 9A.56.190 defines robbery in a single paragraph without the use of separately delineated subsections to set forth the means by which a person may commit that offense. Unlike the robbery statute, section (1)(a) of the harassment statute is clearly divided into four separate subsections. Each delineates a means by which one may commit harassment.

Had the Legislature intended the conduct described in subsection (i) to constitute two alternative means of committing harassment, it could have specifically set forth those alternatives in two separate subsections as it did in the remainder of section (1)(a). Because the Legislature chose not to do so, we conclude that it intended the threat to cause bodily injury to be one means, not two, of committing the offense. Subsection (i) describes harassment committed by the single means of a threat to cause bodily injury, either to the "person threatened" or to "any other person."

The State charged G.S. with one means. There is no uncharged alternative means.

Sufficiency of the Evidence

G.S. next argues there was insufficient evidence to support his adjudication of guilt on the felony harassment charge for three reasons. First, he claims that the State presented no evidence that "the person threatened" reasonably feared that he would carry out his threat. Second, he claims that there was no evidence that he "threatened to cause bodily injury to Tina Myrick," as charged in the information. Third, he argues that there was insufficient evidence that he threatened to kill anyone; thus the State failed to prove the element that elevates the crime from a misdemeanor to a felony. We address the first two arguments, but need not reach the third.

The test on review for a challenge to the sufficiency of the evidence in a criminal case is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the prosecution established the essential elements of the crime charged.¹⁷ We draw all reasonable inferences in favor of the State, and interpret those inferences most strongly against the defendant.¹⁸ Because a challenge to the sufficiency of the evidence is a question of constitutional magnitude, a defendant may raise it for the first time on appeal.¹⁹

The harassment statute, RCW 9A.46.020, provides in pertinent part that:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i)To cause bodily injury immediately or in the future to the person threatened or to any

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