State v. Holmes, No. 57875-8-I (Wash. App. 11/26/2007)
| Decision Date | 26 November 2007 |
| Docket Number | No. 57875-8-I.,57875-8-I. |
| Parties | STATE OF WASHINGTON, Respondent, v. JOEL CHRISTOPHER HOLMES, Appellant. |
| Court | Washington Court of Appeals |
Appeal from King County Superior Court. Docket No: 04-1-14102-4. Judgment or order under review. Date filed: 03/15/2006. Judge signing: Honorable Julie A Spector.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635. Joel Christopher Holmes (info Only) (Appearing Pro Se), 4120 Brooklyn Av Ne, Seattle, WA, 98105.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104. Dennis John Mccurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2362.
Joel Holmes contends the to-convict instructions in his trial for felony telephone harassment were defective for failing to require the jury to find that the death threats he made were "true threats." Because this contention is controlled by our recent decision in State v. Tellez,1 and because the other arguments raised by Holmes and his counsel lack merit, we affirm his convictions for four felony violations of the telephone harassment statute, RCW 9.61.230.
Based on allegations that Holmes threatened the lives of University of Washington administrators and faculty, the State charged him with four counts of felony telephone harassment. The evidence produced at trial showed that in 1986 following disciplinary proceedings, the University of Washington banned Holmes from its campus for threatening staff, including economics professor Gardner Brown. Vice Provost Steven Olswang and president Dr. William Gerberding participated in the disciplinary proceedings.
Holmes subsequently contacted Helen Remick, the university's director of affirmative action for women, and alleged that he had been a victim of discrimination by the economics department. Remick investigated the allegations and concluded they were unfounded.
A short time later after the disciplinary proceedings, a man began calling Steven Olswang at his home. The caller, identified by Olswang as Holmes, was upset about the disciplinary proceedings and threatened to kill Olswang, his family, and others involved in the proceedings. Concerned for his family's safety, Olswang called the police. The calls stopped.
Twelve years later, in 1998, Olswang received another series of calls and "very violent threats" from a man he identified as Holmes. Report of Proceedings (RP) (Feb. 1, 2006) at 145-46. This time, Holmes threatened to kill Olswang, Helen Remick, Dr. Gerberding, and faculty members involved in the disciplinary proceedings. While the calls were coming in, Olswang saw Holmes standing across the street from his home. Olswang ran onto his porch and yelled, "I see you Joel." Id. at 129. Holmes ran off. Olswang felt "horribly endangered" and called the police. Id. at 130.
Around the same time, Dr. Gerberding and his wife each received a phone call from a man threatening to kill Gerberding, Olswang, and President Clinton. The caller stated that Gerberding had ruined his life in 1986 by expelling him from the university. His tone "was menacing and loud, and as the call went along it increased in intensity." Id. at 54. Eventually, the caller was "shouting and hysterical." Id.
On November 13, 2004, university officials received the calls that are the subject of this appeal. Dr. Gerberding received two messages on his home answering machine and one telephone call. The voice sounded like the man who had threatened him in 1998. The man once again accused Gerberding of ruining his life with the 1986 expulsion and threatened to kill him. As in 1998, the caller's voice "had a strident loud quality, and it sort of grew in intensity to where it became hysterical." Id. at 61.
That same day, Helen Remick received a call from a man who "sounded intense" and asked if she was the "Helen Remick who works in the equal opportunity office at University of Washington." RP (Jan. 31, 2006) at 61. When Remick said she was, the man threatened to kill her. He also told her to "ask president Gerberding . . . what he did in the 1980's" and mentioned his dismissal from school. Id. at 32. Remick believed she might be killed. Her husband called the police.
Professor Brown received a threatening call that day from a man he identified as Holmes. The man referred to the 1986 disciplinary proceedings and threatened to kill Brown, Steven Olswang, and others. He spoke in an "elevated" tone "bordering [on] anger" and told Brown that he knew where he lived. RP (Feb. 1, 2006) at 98. Brown was "very, very frightened" and improved his household security as a result of the call. Id. at 101.
Steven Olswang received four messages from Holmes that day. Holmes began by recalling the 1986 disciplinary proceedings and then threatened to kill Olswang, his family, Dr. Gerberding, Helen Remick, and others. The call became "incredibly violent and scary," with Holmes saying that the beheadings in the middle east were "nothing compared to what I'm going to do to you and your family." Id. at 132-33. Olswang was "petrified." Id. at 133. He was particularly concerned about "the advancement in the threats from . . . I'm going to kill you . . . to actually getting graphic about the kinds of damage he was going to do to my body." Id. at 134. He described Holmes' tone as "scary, diabolical laughing," and stated that the threats of specific violent acts were "obviously thought out in advance." Id. He summed up the messages as "a 20-minute soliloquy of murderous threats." Id. at 132.
Holmes represented himself at trial and took the stand in his defense. He denied having any contact with any of the State's witnesses since 1986. A jury convicted him of four counts of felony telephone harassment.
Holmes first contends the to-convict instructions omitted an essential element of the charged crimes, i.e., that each threat was a true threat. This contention is controlled by our decision in State v. Tellez, No. 58155-4-I, slip op at 4 (Wash. Ct. App. Oct. 29, 2007) ().
Holmes next contends there was insufficient evidence for the jury to find that the threats were true threats. Evidence is sufficient if, after reviewing it in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A sufficiency claim admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. Id. We infer criminal intent from conduct and defer to the trier of fact in resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
In order to prove Holmes' threats were true threats, the State had to prove that a reasonable person in Holmes' position would foresee that the listener would interpret his threat as a serious expression of intent to kill. State v. Kilburn, 151 Wn.2d 36, 46, 84 P.3d 1215 (2004). Viewed in a light most favorable to the State, Holmes' obsession with his expulsion over a long period of time, his express vendetta against his victims, the angry tone of his threats, his appearance at the home of one victim, and his escalation to describing exactly how he would kill his victims all support the conclusion that a reasonable person in his position would foresee his listeners taking his threats seriously.
We also reject Holmes' claim that the evidence was insufficient to establish that he had the requisite intent to harass, intimidate, or torment his victims. He asserts that the test is whether he had this intent when he initiated the calls. He acknowledges that we rejected this argument in City of Redmond v. Burkhart, 99 Wn. App. 21, 991 P.2d 717 (2000), and held instead that a defendant need only form the requisite intent at some point during the call. Holmes argues, however, that Burkhart was wrongly decided and asks us to follow Division Two's recent decision rejecting Burkhart and holding that the intent must exist when the call is initiated. State v. Lilyblad, 134 Wn. App. 462, 140 P.3d 614 (2006), review granted, 160 Wn.2d 1009 (2007).2 We adhere to our holding in Burkhart.3
Holmes next contends the court erred in failing to give a unanimity instruction for two counts. He points out that the evidence on count one included two messages on an answering machine and one completed telephone call, and the evidence on count two included four messages. Because each call or message was alone sufficient to support a conviction, Holmes contends the State either had to elect a specific call or message for each count, or the court had to give a unanimity instruction. We disagree.
Even when several acts could each support the crime charged, unanimity is not required if the acts are part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). To determine whether acts constitute a continuing course of conduct, courts may consider the time frame, the location, whether the same motive was involved, and whether there was more than one victim. Id. Here, the calls in count one involved the same victim, the same time frame, and the same location. The same is true of the calls in count two. The calls in count one all consisted of threatening tirades. Similarly, the calls in count two amounted to one continuous threatening message interrupted only when the recorder cut Holmes off. Viewed in a commonsense manner, the calls in each count were part of a...
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