State v. JM

• Decision Date: 02 August 2001
• Docket Number: No. 70575-5.,70575-5.
• Citation: 144 Wash.2d 472,144 Wn.2d 472,28 P.3d 720
• Parties: STATE of Washington, Respondent, v. J.M., Petitioner.
• Court: Washington Supreme Court

28 P.3d 720

144 Wn.2d 472

144 Wash.2d 472

STATE of Washington, Respondent, v.J.M., Petitioner.

No. 70575-5.

Supreme Court of Washington, En Banc.

Argued May 30, 2001.

Decided August 2, 2001.

George Yeannakis, John Avrom Strait, Seattle, Nancy Lynn Talner, Kenmore, for Amicus American Civil Liberties Union.

Nielsen, Broman & Associates, James Robert Dixon, Seattle, for Petitioner.

Maureen Andrea Howard, Norm Maleng, King County Prosecutor, Dennis John McCurdy, Deputy, Seattle, for Respondent.

MADSEN, J.

Defendant J.M. contends that a conviction of felony harassment pursuant to RCW 9A.46.020(1)(a)(i) requires that the State prove the defendant knew or reasonably should have known that his or her threat to cause bodily injury would be communicated to the proposed victim.Both the trial court and the Court of Appeals disagreed, reasoning that the defendant's knowledge or intent that the threat be communicated to the proposed victim is irrelevant under the statute.We affirm.

FACTS

On April 28, 1999, approximately one week after the school shootings at Columbine High School in Littleton, Colorado, two Denny Middle School students, fourteen-year-old S.B. and thirteen-year-old J.T., were walking home from school.¹Thirteen-year-old J.M., who had recently been suspended from Denny, joined them.J.M. was talking about his suspension and saying that he was mad at Mr. Hashiguchi (the principal at Denny), Mr. Boyd (a Denny administrator in charge of seventh grade discipline), and Mr. Sharper (a district security person).J.M. also talked about what happened at Denver, and said that he and his friend would come to the school and "do that" and then probably move out of state; he said "he wanted to do a shooting at Denny like there was in Colorado."Verbatim Report of Proceedings (RP)at 20, 38. S.B. responded that "if my little brother or somebody gets shot" then he would know who to come to.RPat 20.J.M. then said, "I'd only kill Mr. Sharper, Mr. Hashiguchi, and Mr. Boyd."Id.When J.M. said this, he was "excited,""anxious to talk,""talking loud like he really wanted to do it," and walking in front and to the side of the others, socking his hand.RPat 21, 22, 39.

J.T. testified he thought J.M. was "blowing off steam" and "just being a jerk."RPat 40.When he first heard J.M.'s statements, S.B. did not "think that much of it" and also thought that J.M. was just "blowing off steam,""being a jerk".RPat 22, 31.However, later, after he thought about it, he thought "there was some possibility that that might happen."RPat 22.The next day, a teacher overheard S.B. telling another student about what J.M. had said and asking if the other student thought he would do it; the teacher instructed S.B. to tell his counselor, who then told him to tell Mr. Hashiguchi.Mr. Hashiguchi was "shocked, and surprised and concerned" when told.RPat 45.Mr. Hashiguchi had had about 10 contacts with J.M. over the past school year, and was aware of J.M.'s disciplinary problems at school.He had seen J.M. angry, had known him to be emotional, and had seen him crying and noncompliant.Hashiguchi was afraid for his personal safety after hearing about J.M.'s threat.Hashiguchi had never seen J.M. in possession of any weapons, and the suspension at the time was not for any act of violence.He was unaware of any other threats made by J.M. Hashiguchi also testified that he would be concerned if he"heard through the grapevine a threat made by any student."RPat 52-53.

Hashiguchi reported the incident to the police, and the State charged J.M. with felony harassment.At J.M.'s adjudicatory hearing, he moved for dismissal on the basis that the State had failed to present evidence that he knew his threat would be communicated to the principal.The court denied the motion, and adjudicated J.M. guilty of felony harassment, based on his threat to kill Mr. Hashiguchi.²J.M. appealed.The Court of Appeals affirmed, holding that the felony harassment statute does not require that the defendant know or should know his or her threat will be communicated to the threatened person.State v. J.M.,101 Wash.App. 716, 6 P.3d 607(2000).J.M. sought discretionary review by this court, and the American Civil Liberties Union (ACLU) filed a brief in support of his petition for review.

ANALYSIS

J.M. was convicted of felony harassment under RCW 9A.46.020(1)(a)(i), (b)³:

(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;

....

... and

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

(Emphasis added.)"Threat" is defined as, among other things, "to communicate, directly or indirectly the intent ... [t]o cause bodily injury in the future to the person threatened or to any other person."RCW 9A.04.110(25)(a).

J.M. maintains that the word "knowingly" means that the person making the threat must know, or should know, that the threat will be communicated to the person threatened.The Court of Appeals acknowledged that "it may seem intuitive that in order to harass someone the perpetrator must intend that the person threatened find out that he or she has been threatened."J.M.,101 Wash.App. at 726,6 P.3d 607.The Court of Appeals held, however, that the statute does not require that the perpetrator know or intend that the threat be communicated to the person threatened.Instead, the court held, the statute requires that the perpetrator knowingly communicate the threat either directly or indirectly, that the person threatened finds out about the threat, and that words or conduct of the perpetrator places the person threatened in reasonable fear that the threat will be carried out.J.M.,101 Wash.App. at 730,6 P.3d 607.

J.M. raises a number of statutory construction arguments, as well as First Amendment concerns that he urges require his reading of the statute.Because some of the statutory argument depends in part upon the constitutional claim, we address the First Amendment issue first.

As J.M. contends, RCW 9A.46.020 regulates pure speech."[A]statute ... which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind."Watts v. United States,394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664(1969);seeState v. Williams,144 Wash.2d 197, 207, 26 P.3d 890(2001).J.M. contends that in order to constitutionally construe RCW 9A.46.020(1)(a)(i), it must be construed to encompass only "true threats", and therefore the court must interpret "knowingly" to mean that the person making the threats must know or intend that the threat be communicated to the person threatened.

"True threats" are not protected speech.See, e.g., United States v. Fulmer,108 F.3d 1486(1st Cir.1997);United States v. Kelner,534 F.2d 1020, 34 A.L.R. Fed 767(2d Cir.1976);United States v. Howell,719 F.2d 1258(5th Cir.1983);United States v. Khorrami,895 F.2d 1186(7th Cir.1990);United States v. Orozco-Santillan,903 F.2d 1262(9th Cir.1990);Williams,26 P.3d at 896.A "true threat" is a statement made "`in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].'"Id.,26 P.3d at 896(alteration in original)(quotingState v. Knowles,91 Wash.App. 367, 373, 957 P.2d 797(1998)(quotingKhorrami,895 F.2d at 1192)).A "true threat""`is a serious one, not uttered in jest, idle talk, or political argument.'"State v. Hansen,122 Wash.2d 712, 717 n. 2, 862 P.2d 117(1993)(quotingHowell,719 F.2d at 1260).The reasons threats of violence are outside the First Amendment are the "protect[ion of] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur."R.A.V. v. City of St. Paul, Minn.,505 U.S. 377, 387-88, 112 S.Ct. 2538, 120 L.Ed.2d 305(1992).

This Court recently stated that "Washington's criminal harassment statute clearly prohibits true threats," citing and quoting former RCW 9A.46.020(1)(a)(i).Williams,26 P.3d at 896.In arguing that RCW 9A.46.020 requires that the defendant knows or should know that the threat will be communicated to the threatened person, J.M. relies, however, on a different statement of what constitutes a "true threat" than set forth above.In Orozco-Santillan,903 F.2d at 1265-66, the court said that a "true threat" is one "where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person."

Orozco-Santillan is not sound authority for the proposition that only a threat that the threatener knows or should know will be communicated to the victim is unprotected speech.First, the case involved threats made directly to the victims in person and by telephone and the court in Orozco-Santillan was not faced with the issue raised by J.M. in this case.Second, the opinion actually contains more than one formulation of the "true threat" standard, since it also recites the "true threat" standard set forth above.Orozco-Santillan,903 F.2d at 1265("whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault").⁴

A number of federal appellate courts have concluded that the defendant need not know or intend that a threat be communicated to the person threatened in order for the threat to constitute a true threat.Many cases involve threats against the President.E.g., United States v. Carrier,672 F.2d 300, 304(2d Cir.1982)(threat to kill the President need not be communicated to the President, and whether words constitute a...