State v. E.J.J.

Decision Date04 March 2013
Docket NumberNo. 67726-8-1,67726-8-1
CourtCourt of Appeals of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. E.J.J., D.O.B. 11/29/93 Appellant.


DWYER, J. — E.J.J., a juvenile at the time of his adjudication, was found guilty by the trial court of obstructing a law enforcement officer based upon an incident in which police officers were called by his mother to their home due to the behavior of E.J.J.'s highly intoxicated sister. On appeal, E.J.J. contends that the obstruction statute, RCW 9A.76.020(1), is facially overbroad because, he asserts, it prohibits constitutionally protected speech. He further contends that insufficient evidence supports his adjudication of guilt. Finally, E.J.J. asserts that the obstruction statute is unconstitutional as applied because, he alleges, his actions were protected by various constitutional provisions.

Because our Supreme Court has construed the obstruction statute to require conduct in addition to pure speech, E.J.J.'s facial overbreadth challenge fails. Moreover, based upon the evidence presented, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubtThus, sufficient evidence supports E.J.J.'s adjudication of guilt. Finally, with regard to his as-applied challenge, E.J.J. did not raise in the trial court the alleged constitutional infirmities that he asserts on appeal; nor did he challenge the lawfulness of his arrest or seek to exclude the presentation of any evidence that was admitted. On appeal, his contention is limited to his assertion that his words and actions could not result in a constitutionally valid conviction. Accordingly, in reviewing E.J.J.'s as-applied challenge, we determine whether the obstruction statute is unconstitutional as applied to those of E.J.J.'s actions the evidence of which was necessary to establish the elements of the offense. In other words, we examine whether the challenged statute was applied so as to criminalize speech or conduct that could not constitutionally be criminalized. After such consideration, we conclude that E.J.J.'s as-applied challenge lacks merit. Accordingly, we affirm the trial court's disposition.


Geraldine Johnson called the police to her home on the evening of February 14, 2011. Her juvenile daughter, R., was attempting to fight with Johnson and to break the windows of the home with rocks. Officers Barreto, Jenkins, and Mullins responded to the scene, where, Officer Barreto later testified, they found R. to be "highly intoxicated" and "very belligerent." For several minutes, the officers attempted "to calm her down while [they] worked out the situation between her and her mother."

According to Officer Jenkins, "just as things kind of started to settle," E.J.J., R.'s 17-year-old brother, stepped outside of the home and approached R.and the officers. Officer Jenkins informed E.J.J. that the officers were "in the middle of an active investigation" and asked him to go back inside the house and close the door. Although the officer repeated this request "four or five times," E.J.J. refused to comply. Indeed, E.J.J. became "hostile" when the officer made this request. According to Officer Barreto, E.J.J.'s presence made it "very difficult" to calm his sister, and, as a result of his presence, the scene "escalated very quickly into a very hostile situation." Officer Jenkins similarly testified that, although R. had become calm, she "began to escalate" when E.J.J. came outside. Officer Jenkins described E.J.J. as "irate" during this exchange, calling the officers names, yelling, and using profanity. E.J.J. was advised by the officers that he could be "arrested for obstructing" if he refused to comply with their orders.

Eventually, Officer Jenkins, without touching E.J.J., escorted him back to the house. The officer then asked E.J.J. multiple times to close the door to the house, and E.J.J. repeatedly refused. Several times, Officer Jenkins closed the door, and E.J.J. reopened it. The home had two doors, an outer "wrought iron door" that someone inside the home could see through and an inner "solid door." Officer Jenkins wanted E.J.J. to close the solid door because, when only the wrought iron door was closed, E.J.J. "was still able to see what we were doing." This concerned the officer because if E.J.J. "chose to harm us, he'd have the ability to do so without us knowing." The officers had searched neither E.J.J. nor the home for weapons. Several feet away from the doorway was a window through which someone standing inside the home could see the area in whichthe officers and R. were located.

The exchange between the officers and E.J.J. lasted for approximately 20 minutes before Officer Jenkins arrested E.J.J. E.J.J. was thereafter charged with obstructing a law enforcement officer in violation of RCW 9A.76.020(1).

An adjudication hearing was held on August 23, 2011. E.J.J. testified that he approached R. and the officers after seeing an officer take out a "nightstick," with which E.J.J. thought the officer was going to hit his sister. He stated that he wasn't trying to "intervene" in the situation, but that he wanted to "observe" and "supervise" to ensure that his sister was safe. E.J.J. did not deny calling the officers "inappropriate names," but he stated that the officers were also shouting profanities at him.

Following the adjudication hearing, the trial court entered findings of fact and conclusions of law. The court concluded that the State had proved beyond a reasonable doubt the elements of obstructing a law enforcement officer and, accordingly, determined E.J.J. to be guilty as charged.

E.J.J. appeals.


E.J.J. contends that the statute criminalizing obstructing a law enforcement officer, RCW 9A.76.020(1), prohibits a substantial amount of constitutionally protected speech and, accordingly, is facially overbroad. However, our Supreme Court has construed the obstruction statute to require conduct, in addition to pure speech, in order to avoid such a constitutional infirmity. State v. Williams. 171 Wn.2d 474, 251 P.3d 877 (2011). Thus, E.J.J.'soverbreadth challenge fails.

"A statute is overbroad if it chills or sweeps within its prohibition constitutionally protected free speech activities." State v. Hahn, 162 Wn. App. 885, 900, 256 P.3d 1267 (2011) rev'd on other grounds, 174Wn.2d 126, 271 P.3d 892 (2012). Such overbreadth, however, must be "substantial"; the United States Supreme Court has "repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only 'real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Osborne v. Ohio, 495 U.S. 103, 112, 100 S. Ct. 1691, 109 L Ed. 2d 98 (1990) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L Ed. 2d 830 (1973)). Thus, we have held that, "[w]hen analyzing a statute for overbreadth, the key determination is 'whether the enactment reaches a substantial amount of constitutionally protected conduct.'" State v. Dyson, 74 Wn. App. 237, 242, 872 P.2d 1115 (1994) (internal quotation marks omitted) (quoting Citv of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989)). See also Hahn, 162 Wn. App. at 901 (holding that criminal solicitation statute is not overbroad because it "does not prohibit a substantial amount of speech"). "Even where a statute at its margins infringes on protected expression, 'facial invalidation is inappropriate if the remainder of the statute . . . covers a whole range of easily identifiable and constitutionally prescribable . . . conduct.'" Osborne, 495 U.S. at 112 (alterations in original) (internal quotation marks omitted) (quoting New York v. Ferber, 458 U.S. 747, 770 n.25, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)).

Moreover, a statute may survive overbreadth scrutiny where the state supreme court has placed a limiting construction upon the statute, thus restricting its scope to unprotected conduct. Osborne, 495 U.S. at 112-14. In Osborne, the defendant challenged his conviction pursuant to an Ohio statute prohibiting the possession of child pornography, asserting that the statute was overbroad under the First Amendment. 495 U.S. at 107. However, as the United States Supreme Court noted, the Ohio Supreme Court, relying on statutory exceptions, read the statute "as only applying to depictions of nudity involving a lewd exhibition or graphic focus on a minor's genitals." Osborne, 495 U.S. at 107. Accordingly, the state supreme court affirmed Osborne's conviction. Osborne, 495 U.S. at 107. Evaluating the statute as construed by the state supreme court, the United States Supreme Court similarly rejected Osborne's First Amendment arguments, holding that "Osborne's overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne's direct appeal, plainly survives overbreadth scrutiny." Osborne, 495 U.S. at 112-13. The Court explained that it has "long respected" the ability of state supreme courts "to narrow state statutes so as to limit the statute's scope to unprotected conduct." Osborne, 495 U.S. at 120.

Here, E.J.J. challenges the constitutionality of our state's obstruction statute, which provides: "A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties." RCW 9A.76.020(1). He asserts that the statute is unconstitutionally overbroadbecause, he contends, it prohibits a substantial amount of protected speech.

Our Supreme Court, however, has construed the obstruction statute to avoid such a constitutional infirmity, adhering to its "jurisprudential history of requiring conduct in addition to pure speech in order to establish obstruction of an officer." Williams, 171 Wn.2d at 485. There, Williams was convicted of...

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