State v. Kohonen

• Decision Date: 08 February 2016
• Docket Number: No. 73339–7–I.
• Citation: State v. Kohonen, 192 Wash.App. 567, 370 P.3d 16 (Wash. App. 2016)
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jessica L. KOHONEN, Appellant.

192 Wash.App. 567

370 P.3d 16

STATE of Washington, Respondent,

v.Jessica L. KOHONEN, Appellant.

No. 73339–7–I.

Court of Appeals of Washington, Division 1.

Feb. 8, 2016.

Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Evan Patrick Jones, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.

DWYER, J.

¶ 1 J.K. was adjudicated guilty, in juvenile court, of cyberstalking based on two tweets that she sent from her personal Twitter account.She now appeals, contending both that insufficient evidence was adduced to establish that she acted with the intent to "harass, intimidate, torment, or embarrass" another person and that insufficient evidence was presented that her tweets constituted "true threats."Because we agree that insufficient evidence was presented that J.K.'s tweets constituted a true threat, we reverse the conviction and remand for the cause to be dismissed with prejudice.

I

¶ 2 When J.K. was in eighth grade, a classmate, S.G., informed a teacher that another student was behaving oddly.As a result, the other student and J.K. were both suspended from school.J.K. and S.G. had no other interaction until the incident at the center of this case.

¶ 3 Two years later, when J.K. and S.G. were sophomores in high school, they shared a first period class.One morning, J.K. saw S.G. in class and was reminded of the incident two years before.She quickly posted two short messages, known as tweets, via the web site Twitter.The first read, " Tbh ^[1] I still want to punch you in the throat even tho it was 2 years ago."The second read, "# [S.G.]mustdie."

¶ 4 J.K. later explained that she posted tweets frequently.She used Twitter as a "virtual diary," posting her thoughts, reactions, feelings, and more.She testified that she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory from middle school.Although she was aware that the posts were public, and that she had approximately 100 people who followed her,²she testified that she did not consider the potential impact her tweets might have on S.G.

¶ 5 After school that day, J.K. and a friend, J.G., were walking through the school and saw "a bunch of red paint" spilled on the ground.J.G. joked to J.K. that it looked as if someone had been murdered.J.K. responded by tweeting the word "murder."

¶ 6 For nearly a full day after these tweets, there was no reaction.None of J.K.'s Twitter followers mentioned them to her or, to her knowledge, responded to them in any way.S.G. was unaware of the tweets.The next day, however, another student, I.R., who follows J.K. on Twitter, noticed the tweets and showed them to S.G.

¶ 7 I.R. later explained that the only reason she became aware of J.K.'s tweets was that she followed J.K. on Twitter, which meant that anything that J.K. posted automatically appeared on I.R.'s Twitter page.I.R. also explained that, because J.K.'s Twitter account was public, anyone who searched for her page could see the things that she had posted that were not specifically blocked.

¶ 8 S.G. testified that she felt angry and embarrassed upon learning of the tweets because she knew that others would see them.She was not frightened, though, because she did not think that J.K. would actually hurt her.Nevertheless, S.G. decided to bring the tweets to the attention of school administrators.She first showed them to Nicole Lockhart, the dean of students, whom she encountered on the way into the administration building.Lockhart consulted with other administrators before summoning the school resources officer, Officer George Brown of the Bellingham Police Department.

¶ 9 Lockhart and Brown reviewed the tweets together with S.G. and her mother, whom S.G. had called soon after seeing the tweets.Despite the significant time difference between the tweets about S.G. from the prior morning and the "murder" tweet from the prior afternoon, because they appeared in sequence on J.K.'s Twitter page,³ the group treated the tweets as if all three were related.

¶ 10 J.K. was taken from class to the administration office, where Lockhart and Brown confronted her with the tweets.J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. J.K. also explained that the "murder" tweet was unrelated to the other two.

¶ 11 J.K. was charged with one count of cyberstalking.After trial, the commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them.The court also concluded that the tweets constituted a true threat.J.K. was sentenced to six months of probation and 30 hours of community service.

¶ 12The superior court denied J.K.'s motion to revise.A notice of appeal was timely filed.

II

¶ 13 J.K. contends that insufficient evidence was presented that the tweets in question constituted "true threats," as required by the federal and state constitutions.This is so, she asserts, because a reasonable person in her position would not have foreseen that the tweets would be interpreted as serious threats to inflict harm.We agree.

¶ 14We review the superior court's ruling, not the commissioner's.

On revision, the superior court reviews both the commissioner's findings of fact and conclusions of law de novo based upon the evidence and issues presented to the commissioner.In re Marriage of Moody,137 Wash.2d 979, 993, 976 P.2d 1240(1999);[ ]State v. Wicker,105 Wash.App. 428, 433, 20 P.3d 1007(2001).Once the superior court makes a decision on revision, "the appeal is from the superior court's decision, not the commissioner's."State v. Hoffman,115 Wash.App. 91, 101, 60 P.3d 1261(2003)[, reversed on other grounds,150 Wash.2d 536, 78 P.3d 1289(2003)].

State v. Ramer,151 Wash.2d 106, 113, 86 P.3d 132(2004).

¶ 15 The due process clauses of the federal and state constitutions require that the government prove every element of a crime beyond a reasonable doubt.Apprendi v. New Jersey,530 U.S. 466, 476–77, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000);U.S. CONST. amend. XIV;WASH. CONST. art. I, § 3."[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."Jackson v. Virginia,443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979)."[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson,443 U.S. at 319, 99 S.Ct. 2781.

¶ 16"The purpose of this standard of review is to ensure that the trial court fact finder 'rationally appl[ied]' the constitutional standard required by the due process clause of the Fourteenth Amendment, which allows for conviction of a criminal offense only upon proof beyond a reasonable doubt."State v. Rattana Keo Phuong,174 Wash.App. 494, 502, 299 P.3d 37(2013)(alteration in original)(quotingJackson,443 U.S. at 317–18, 99 S.Ct. 2781), review denied,182 Wash.2d 1022, 347 P.3d 458(2015).This standard of review is also designed to ensure that the fact finder at trial reached the "subjective state of near certitude of the guilt of the accused," as required by the Fourteenth Amendment's proof beyond a reasonable doubt standard.Jackson,443 U.S. at 315, 99 S.Ct. 2781.

¶ 17"A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."State v. Salinas,119 Wash.2d 192, 201, 829 P.2d 1068(1992).Circumstantial evidence and direct evidence carry equal weight when reviewed by an appellate court.State v. Goodman,150 Wash.2d 774, 781, 83 P.3d 410(2004).Finally, we defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence.State v. Rodriquez,187 Wash.App. 922, 930, 352 P.3d 200, review denied,184 Wash.2d 1011, 360 P.3d 817(2015).

¶ 18 J.K. was charged with misdemeanor cyberstalking contrary to RCW 9.61.260, which provides, in pertinent part:

(1) A person is guilty of cyberstalking if he or she, with intent ^[4] to harass, intimidate, torment, or embarrass any other person, ... makes an electronic communication to such other person or a third party:

...(c) Threatening ^[5] to inflict injury on the person or property of the person called or any member of his or her family or household.

¶ 19 Thus, to convict J.K. of the crime of cyberstalking, the State was required to prove, in pertinent part, each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made.See11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 36.82 (3d ed. Supp. 2014).

¶ 20 J.K. contends that insufficient evidence was presented to support a finding that her tweets constituted "true threats."

¶ 21 Where a threat to commit bodily harm is an element of a crime, the State must prove that the alleged threat was a "true threat."State v. Kilburn,151 Wash.2d 36, 54, 84 P.3d 1215(2004).This is because of the danger that the criminal statute will be used to criminalize pure speech and impinge on First Amendment rights.True threats are not protected speech because of the "fear of harm aroused in the person threatened and the disruption that may occur as a result of that fear."Kilburn,151 Wash.2d at 46, 84 P.3d 1215.

¶ 22 The test for determining a "true threat" is an objective test that focuses...