State v. Haines

• Citation: 151 Wn. App. 428,213 P.3d 602
• Decision Date: 03 August 2009
• Docket Number: No. 61858-0-I.,61858-0-I.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. James Alfred HAINES, Appellant.

213 P.3d 602

151 Wn. App. 428

STATE of Washington, Respondent, v. James Alfred HAINES, Appellant.

No. 61858-0-I.

Court of Appeals of Washington, Division 1.

August 3, 2009.

Sarah McNeel Hrobsky, Washington Appellate Project, Seattle, WA, for Appellant.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, A.C.J.

¶ 1 James Haines was convicted of felony harassment, misdemeanor harassment, and misdemeanor stalking after he threatened Kebrah Bezabih on two separate occasions. He now appeals, contending that insufficient evidence supports his stalking conviction. According to Haines, this is so because the stalking statute requires proof of at least six predicate acts of harassment. Alternately, he contends that the statute is unconstitutionally vague. Finally, he contends that his combined convictions violate the constitutional guarantee against double jeopardy. Holding that proof of two incidents of harassment is sufficient to support a conviction for stalking, that the stalking statute is not unconstitutionally vague, and that Haines's remaining arguments are contrary to existing case law, we affirm.

I

¶ 2 Haines was charged as a result of incidents that occurred while Bezabih was working at her job as a convenience store cashier.¹ On Christmas Eve 2007 Haines entered the store and, without any particular warning, informed Bezabih, "I want to fuck you." Bezabih, at a loss for an appropriate response, simply kept working. Haines then said to her, "I'm talking to you; I want to fuck you." Bezabih attempted to deflect Haines's attention, telling him, "I'm just here to work." Haines ignored this response and proceeded to enumerate various sexual positions that he wished to try with Bezabih. After doing this for a while, Haines then pointed at a customer whom Bezabih was assisting, stating "actually I want to fuck you with this guy." Haines then became increasingly insistent, telling Bezabih, "I want to fuck you, bitch."

¶ 3 Bezabih responded "you don't know me; why do you want to, you know, do that?" Haines replied "because you're a fucking immigrant, come over here and use [an] American to get a green card." Bezabih then informed Haines that she already possessed a green card and did not use anyone else to obtain it.

¶ 4 Haines then left the store. Bezabih followed him outside, worried that he was disturbing customers. When she exited the building, Haines threw an open can of soda at her, which she dodged. Haines then approached her while she stood her ground with her arms crossed, continuing to tell her that he wanted to "fuck her" and calling her a "bitch." A regular customer then began to pull her back into the store, telling her that she should come back inside, to which Haines responded by turning to the customer and telling him "that's not your fucking business." Haines then informed Bezabih, "I'm gonna kill you." At that point, the customer succeeded in pulling Bezabih back inside. Haines then got into a car and drove away.

¶ 5 After Haines left, 911 was called, police were dispatched, and Bezabih and the witnesses present in the store recounted to the police that which had occurred.

¶ 6 A little over a month later, Bezabih was again at work when Haines returned to the convenience store. No customers were present. Haines walked directly to where Bezabih was sitting and said "hey, bitch, remember me?" Bezabih responded "yeah, I remember you." Haines then told her, "Remember, I'm gonna kill you. Don't forget that. So, I just came to remind you." He then told Bezabih, "I'm giving you three days ... to say goodbye to your friends and your lovers," and "you're a fucking immigrant, that's why I want to kill you."

¶ 7 At this point, the same regular customer who had pulled Bezabih back inside during the Christmas Eve incident walked into the store. Haines realized that someone else had entered and he looked at the customer. When Haines realized who it was, he said, "Remember me?," to which the customer responded, "Yeah, I remember you." Haines then said to him "can you tell this bitch that I'm gonna kill her?" Haines then walked out of the store.

¶ 8 Frightened, Bezabih then picked up the store's telephone to call 911. She looked out the window while doing so and realized that Haines was still standing in front of his car, by the store's gasoline pumps, watching her. When he saw her pick up the phone, he returned to the store. He then repeated to Bezabih, "I'll give you three days. You don't want to live ... three days? You trying to call cops?" Frightened, Bezabih responded "no, I'm not trying to call cops; I'm just trying to call my friend." Haines responded "you should live [the] three days that I'm ... giv[ing] you." Haines then told Bezabih that he knew when she finished work. He then left the store, walked out to his car, and drove away.

¶ 9 Bezabih believed that Haines intended to carry out his threats to kill her. She again called 911 and reported the incident to the police, who came to her work place to investigate. Instead of taking the bus home, as she usually did, she also called her boyfriend, Tedras Shiferaw, to come pick her up and take her home.

¶ 10 Shiferaw came to get Bezabih when her shift ended. He then drove her home, where he parked. The two were talking about the evening's events when Bezabih glanced across the street. When she did, she saw Haines standing in a gas station parking lot, facing her apartment.

¶ 11 When the couple saw Haines, Bezabih called 911. Shiferaw, in turn, walked across the street to the gas station. Shiferaw said hello to Haines and asked him "how are you doing, sir?" Haines responded that he was "trying hard not to kill somebody." Shiferaw did not continue to speak to Haines, but instead went inside the gas station's store and watched him from inside.

¶ 12 After a period of time, Haines got into his car and started driving away. By this point, Shiferaw had left the gas station. When he saw Haines driving away, he grabbed Bezabih's telephone, got into his own car, and started following Haines. Following Shiferaw's directions, police officers located Haines's car, pulled him over, and ultimately arrested him.

¶ 13 The State charged Haines with felony harassment, malicious harassment, misdemeanor harassment, and misdemeanor stalking. A jury convicted him of felony harassment, misdemeanor harassment, and misdemeanor stalking.

¶ 14 Haines appeals.

II

¶ 15 Haines first contends that insufficient evidence was introduced at trial to support his conviction for stalking.² He does not dispute that the events recounted above occurred; rather, he contends that the text of the stalking statute requires that a person harass his or her victim on at least six separate occasions before being guilty of stalking. According to Haines, the evidence presented allowed the jury to conclude that he harassed Bezabih on, at most, two occasions. Thus, Haines contends, his conviction for stalking must be reversed. We disagree.

¶ 16 The stalking statute provides that a person can be found guilty of stalking another person if, with the requisite mental state, he or she "repeatedly" harasses the victim to the extent that the victim reasonably fears harm:

A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:

(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and

(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and

(c) The stalker either:

(i) Intends to frighten, intimidate, or harass the person; or

(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.

RCW 9A.46.110(1). "Repeatedly" is defined as "on two or more separate occasions," RCW 9A.46.110(6)(e), while "Harasses" means "unlawful harassment as defined in RCW 10.14.020." RCW 9A.46.110(6)(c).

¶ 17 RCW 10.14.020, in turn, requires a "course of conduct," which is defined as a "series of acts over a period of time, however short:"

(1) "Unlawful harassment" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

(2) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. "Course of conduct" includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included within the meaning of "course of conduct."

RCW 10.14.020(1), (2).

¶ 18 According to Haines, this layering of definitions requires that a defendant engage in at least six independent acts of harassment to create criminal culpability under the stalking statute. In other words, Haines contends that, in order to be guilty of stalking by harassment, a person must "repeatedly harass" the victim, which under the statutory definition ends up meaning that the person must "repeatedly" engage in a "course of conduct," which requires a "series of acts over a period of time." Pointing to the dictionary definition of "series"—"a group of usu. three or more things"³—Haines argues that this layering results in ...