State v. Haberman

• Citation: 105 Wash.App. 926,22 P.3d 264
• Decision Date: 20 April 2001
• Docket Number: No. 23843-8-II.,23843-8-II.
• Parties: STATE of Washington, Respondent, v. Craig F. HABERMAN, Appellant.
• Court: Court of Appeals of Washington

22 P.3d 264

105 Wash.App. 926

STATE of Washington, Respondent, v. Craig F. HABERMAN, Appellant.

No. 23843-8-II.

Court of Appeals of Washington, Division 2.

April 20, 2001.

Christopher William Bawn, Olympia, for Appellant.

Steven Curtis Sherman, Thurston County Prosecutors Office, Olympia, for Respondent.

HUNT, J.

Craig Haberman appeals his conviction for malicious harassment, RCW 9A.36.080, based on angry racial comments and threats he made to a grocery clerk who had refused to sell him beer the previous night when Haberman appeared intoxicated. Haberman argues that (1) the State charged him under an invalid, old law, which the Legislature had amended before the incident, and (2) the trial court gave erroneous jury instructions based upon outdated statutory language.¹ We agree with Haberman and reverse.

FACTS

On the evening of June 4, 1998, Haberman was waiting in the check-out line at Bayview Thriftway in Olympia. Head cashier, Daniel Ward, relieved the checker, who was scheduled to go on break. As Ward entered the check stand, Haberman asked Ward, "Are you going to sell me a bag of chips?" Ward answered, "Sure," to which Haberman replied, "But you wouldn't sell me a half case of beer last night." Ward told Haberman, "I didn't think you were in shape to have any more beer last night." Haberman started arguing with Ward,² who told Haberman to leave.

Haberman gestured close to Ward's face, threatened to get even with Ward, and made several racial slurs concerning Ward's Asian ancestry. Ward followed Haberman out of the store, telling the other sales clerk to call the police, who happened to be across the street. After the police arrested, handcuffed, and placed Haberman in the back of a police car, he continued to yell at Ward. The arresting officer "could smell an odor of alcoholic beverage on Mr. Haberman's breath, and his speech was slurred."

The State charged Haberman with malicious harassment in violation of RCW 9A.36.080(1)(c). At trial, the court allowed testimony concerning a possible intoxication defense. But it refused Haberman's offer of proof and his request to present testimony about Haberman's tendency to "act out," to scream, and to yell at people irrationally, without regard to race.

Haberman objected to four instructions (numbers 5, 6, 7 and 11a) and to the trial court's refusal to give his proposed harassment instruction (the legislative findings in RCW 9A.36.078). On appeal, Haberman assigns error to four other jury instructions (numbers 4, 8, 9 and 11). We focus on the State's use of an invalid law to charge Haberman and the trial court's use of related, erroneous instructions to charge the jury.

ANALYSIS

I. HISTORY OF MALICIOUS HARASSMENT LAW

In State v. Talley, 122 Wash.2d 192, 858 P.2d 217 (1993), the Supreme Court held that the 1989 malicious harassment law was, in part, unconstitutional for being a content-based regulation of protected speech. Prior to Talley, the malicious harassment law³ provided as follows:

A person is guilty of malicious harassment if he maliciously and with the intent to intimidate or harass another person because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap:

(a) Causes physical injury to another person; or

(b) By words or conduct places another person in reasonable fear of harm to his person or property or harm to the person or property of a third person. Such words or conduct include, but are not limited to, (i) cross burning, (ii) painting, drawing, or depicting symbols or words on the property of the victim when the symbols or words historically or traditionally connote hatred or threats toward the victim, or (iii) written or oral communication designed to intimidate or harass because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap. However, it does not constitute malicious harassment for a person to speak or act in a critical, insulting, or deprecatory way unless the context or circumstances surrounding the words or conduct places another person in reasonable fear of harm to his or her person or property or harm to the person or property of a third person.....

Laws of 1989, ch. 95, § 1, (also, formerly codified as RCW 9A.36.080(1)).

In response to Talley, the Legislature extensively rewrote the 1989 malicious harassment law, (Laws of 1989, ch. 95, § 1, and RCW 9A.36.080), amending not only the unconstitutional second section of the law, but also the first section, under which the State erroneously charged Haberman.

The current malicious harassment law now reads as follows:

A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim's race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.

Laws of 1993, ch. 127, § 2, currently codified as RCW 9A.36.080(1).

There are significant differences between the two laws that affect the case before us. First, the newer, 1993 malicious harassment law criminalizes a malicious and intentional act committed "because of his or her perception of the victim's race." In contrast, the old law required merely that the act be "reasonably related to, associated with, or directed toward, that person's race." 9A.36.080(1). Second, the new law requires a threat to a specific person that places that person in "reasonable fear of harm," accompanied by the perpetrator's apparent ability to carry out the threat; "[w]ords alone do not constitute malicious harassment...." Laws of 1993, ch. 127, § 2, codified as RCW 9A.36.080(1)(c). In contrast, the old law allowed a conviction based solely on the defendant's placing the "victim" in fear of harm; it did not make clear, as does the new law, that words alone do not constitute malicious harassment.

II. DEFECTIVE INFORMATION

The State charged Haberman with violation of RCW 9A.36.080(1)(c), which is a correct citation to the current codification of the 1993 malicious harassment law.⁴ But the charging language of the information and the jury instructions use language from the outdated 1989 malicious harassment law.

Haberman contends that (1) he had a constitutional right to be tried under the law that existed in 1998 at the time of the charged offense; (2) the charging language of the information provides none of the protections required under State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000); and (3) the information "barely contains a suitable charge under former RCW 9A.36.080" (a reference to the 1989 malicious harassment law). We agree.

A. ISSUE INDIRECTLY RAISED FOR FIRST TIME ON APPEAL

Haberman neither challenged the sufficiency of the information at trial nor specifically assigned error to the defective information on appeal. Rather, in his opening brief on appeal, he challenged the trial court's use of outdated statutory language: "The court erred in instructing the jury under former RCW 9A.36.080."⁵ Brief of Appellant at 1. And he raised the defective information issue in his Reply Brief, in response to the State's argument that "Appellant was charged under RCW 9A.36.080(1), which the Talley Court found to be constitutional." Brief of Respondent at 12.

"[T]he law of this state has long been that a criminal defendant can raise objections to an information which completely fails to state an offense at any time. Such an objection, which raises a constitutional question, may even be made for the first time on appeal." State v. Holt, 104 Wash.2d 315, 321, 704 P.2d 1189 (1985) (citation omitted, emphasis added). Such is the case here. Therefore, "in order to serve the ends of justice," we address the defective information that Haberman challenges for the first time in his reply brief. RAP 1.2(c); State v. Aho, 137 Wash.2d 736, 740-41, 975 P.2d 512 (1999).

B. UNCONSTITUTIONAL CHARGING UNDER INVALID LAW

U.S. Const. Amend. 6 requires that in "all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation...." CONST. ART. I § 22 (amend.10) further states that in "criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him...." McCarty, 140 Wash.2d at 425, 998 P.2d 296. McCarty discussed the standard of review for claims of defective charging documents:

If a charging document is challenged for the first time on review, however, it will be construed liberally and will be found sufficient if the necessary elements appear in any form, or by fair construction may be found, on the face of the document. [State v.] Kjorsvik, 117 Wash.2d [93] 105 [812 P.2d 86 (1991)]. However we note that "`[i]f the document cannot be construed to give notice of or to contain in some

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