State v. Lilyblad

Decision Date07 February 2008
Docket NumberNo. 79114-7.,79114-7.
Citation177 P.3d 686,163 Wn.2d 1
CourtWashington Supreme Court
PartiesSTATE of Washington, Petitioner, v. Stephanie Rena LILYBLAD,<SMALL><SUP>&#x2020;</SUP></SMALL> Respondent.


¶ 1 This case presents a conflict in the Court of Appeals regarding whether the crime of telephone harassment, RCW 9.61.2301, requires the State to prove that a defendant formed the specific intent to harass the victim at the initiation of a call, or at any time during the call. The Court of Appeals, Division Two, reversed Stephanie Paris's conviction based on an improper jury instruction as to when the specific intent of that crime must form. The Division Two opinion conflicts with a previous Court of Appeals, Division One, opinion interpreting the same statute. We hold that telephone harassment requires that the defendant form the specific intent to harass at the time the defendant initiates the call to the victim.


¶ 2 A jury convicted Paris on one count of felony telephone harassment, arising from a telephone call she placed to the home of Lorie Haley on December 24, 2004. Haley is the paternal grandmother of Paris's two sons, Tyler and Matthew, who were living with Haley at that time.

¶ 3 Some of the relevant facts surrounding the telephone call were disputed at trial. The State presented evidence that one of the boys answered the call from Paris and that the other boy soon picked up another phone to join the conversation. Paris told one of the boys to give the phone to Haley. Haley observed the boys talking on the phone and determined that they were speaking with their mother. Haley picked up a third phone to speak with Paris.

¶ 4 Paris initially told Haley that she was down the street from Haley's house and was coming to get the boys with the assistance of a police officer. Haley pleaded with Paris not to do so. This exchange "led to an argument," during which both Haley and Paris became "upset." Report of Proceedings at 14. At this point, Haley testified that Paris "started making threats," id., that "basically . . . she had ways to have me killed," id., and "that she would actually F-ing kill me," id. at 21; and "[s]he just said, get off the phone you F-ing bitch, or I'll ... kill you," id. at 51. Haley hung up the phone after receiving these threats. The entire conversation lasted approximately five minutes. Haley reported the threatening phone call to the Cowlitz County Sheriffs Department the day after Christmas.

¶ 5 Paris testified that she called Haley's home on that day to wish her boys a merry Christmas. She testified that Haley answered the phone but hung up when Paris asked to speak with her children. Paris denied making any threat to Haley.

¶ 6 After the presentation of evidence, the court instructed the jury on the elements of felony telephone harassment. Specifically, jury instruction 5 stated:

To convict the defendant of the crime of Telephone Harassment, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about December 24, 2004, the defendant made a telephone call to Lori[e] Haley;

(2). That the defendant threatened to kill Lori[e] Haley;

(3) That the defendant acted with intent to harass or intimidate Lori[e] Haley; and

(4) The acts occurred in the State of Washington.

Clerk's Papers at 15. Furthermore, jury instruction 7 stated: "`Make a telephone call' refers to the entire call rather than the initiation of the call." Id. at 17. Paris did not object to these instructions at trial. State v. Lilyblad, 134 Wash.App. 462, 465-66, 140 P.3d 614 (2006).

¶ 7 Paris appealed her conviction on grounds that the court failed to instruct the jury correctly on the intent requirement for telephone harassment. Specifically, Paris argued that RCW 9.61.230 requires the formation of criminal intent at the time a defendant initiates the telephone call. Id. at 466, 140 P.3d 614.2

¶ 8 The court held that the statute was ambiguous as to the moment when the intent to harass must form and therefore adopted the interpretation most favorable to Paris, in accord with the rule of lenity. Id. at 468-69, 140 P.3d 614; see State v. Jacobs, 154 Wash.2d 596, 601, 115 P.3d 281 (2005). Given such an interpretation, the court held that the trial court improperly instructed the jury on the intent element. Lilyblad, 134 Wash. App. at 469, 140 P.3d 614. However, the court further held that the evidence presented at trial remained sufficient to support a conviction and remanded the case for a new trial. Id. at 469-70, 140 P.3d 614. The State petitioned this court for review of the Court of Appeals opinion, based on a conflicting interpretation of the same statute by Division One in City of Redmond v. Burkhart, 99 Wash.App. 21, 991 P.2d 717 (2000). The State contends that the trial court gave proper instructions to the jury under Burkhart, which requires the specific intent to form at any time during the telephone call.


¶ 9 This case turns on the construction of RCW 9.61.230. This court reviews issues of statutory interpretation de novo. Clauson v. Dep't of Labor & Indus., 130 Wash.2d 580, 583, 925 P.2d 624 (1996). "Statutory construction begins by reading the text of the statute." State v. Roggenkamp, 153 Wash.2d 614, 621, 106 P.3d 196 (2005); see W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash.2d 599, 609, 998 P.2d 884 (2000). "When we read a statute, we must read it as a whole and give effect to all language used." In re Pers. Restraint of Skylstad, 160 Wash.2d 944, 948, 162 P.3d 413 (2007); see State v. Young, 125 Wash.2d 688, 696, 888 P.2d 142 (1995). "We give words in a statute their plain and ordinary meaning unless a contrary intent is evidenced in the statute." C.J.C. v. Corp. of Catholic Bishop, 138 Wash.2d 699, 708, 985 P.2d 262 (1999). The parties agree that the language of the statute is unambiguous but disagree on the proper meaning of such language.


¶ 10 Based on the jury instructions given in this case, the question for review centers on whether or not RCW 9.61.230(1) requires a defendant to form the intent to harass at the initiation of the telephone call to the victim, or at any moment during the telephone call. The statute proscribing telephone harassment states:

(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:

(a) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or

(b) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

is guilty of a gross misdemeanor, except as provided in subsection (2) of this section.

(2) The person is guilty of a class C felony ... if either of the following applies:


(b) That person harasses another person under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.

RCW 9.61.230.

¶ 11 The State argues that the statute requires the intent to harass (intimidate, torment, or embarrass/ to form no sooner than the moment the person communicates a threat.3 While the statute refers to a person who makes a call with the intent to harass, the State argues that a person has not completely "made" a call to another person until the termination of the call. Therefore, the State concludes that the requisite intent to harass can be formed at any time during the making of the telephone call.

¶ 12 The State's position tracks Burkhart, in which Division One held that the intent required under RCW 9.61.230(1) may be formed at any point during a telephone call. In Burkhart, the defendant called his wife's home in order to speak to his son, who lived with her. After she refused to put the son on the telephone, the defendant threatened to kill her. Burkhart, 99 Wash.App. at 23, 991 P.2d 717. Upon appeal of his conviction, the defendant argued that his intent must be measured at the time he initiated the call, and that the evidence showed he did not intend to intimidate his wife at the time he initiated the call. Id. at 24-25; 991 P.2d 717. The defendant cited State v. Wilcox, 160 Vt. 271, 628 A.2d 924 (1993), in support of his interpretation.4

¶ 13 The Burkhart court rejected the defendant's interpretation. The court interpreted the intent requirement as modifying the threat communicated, and therefore intent could be formed at any time before the threat is made. 99 Wash.App. at 25-26, 991 P.2d 717. The court defined "making a telephone call" as an activity continually in process "until the last step necessary for finality is taken and completed." Id. at 26-27, 991 P.2d 717. The court noted that requiring the intent to form at the point of initiation "artificially narrows the scope of the statute." Id. at 25, 991 P.2d 717. In the court's view, such an interpretation "draws an illogical distinction between threats made by a caller who initiates the call with the intent to intimidate and those made by a caller who formulates the intent to intimidate mid-conversation." Id.

¶ 14 Division Two took issue with the Burkhart court's sole interpretation of the statute. Lilyblad, 134 Wash.App. at 468, 140 P.3d 614. The court recognized that Wilcox offered an equally reasonable interpretation of essentially the same statutory language. Therefore, the court held that the statute is ambiguous as to whether the caller must initiate the telephone call with the intent to harass another person, or whether the caller may formulate the intent at any time during the call. Id.

¶ 15 Both Court of Appeals interpretations fail to give proper effect to the...

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