State v. Locke

• Decision Date: 06 August 2013
• Docket Number: No. 42035–0–II.,42035–0–II.
• Citation: 307 P.3d 771,175 Wash.App. 779
• Parties: STATE of Washington, Respondent, v. Robert LOCKE, Appellant.
• Court: Washington Court of Appeals

175 Wash.App. 779

307 P.3d 771

STATE of Washington, Respondent,

v.Robert LOCKE, Appellant.

No. 42035–0–II.

Court of Appeals of Washington,

Division 2.

Aug. 6, 2013.

Marla Leslie Zink, Washington Appellate Project, Seattle, WA, for Appellant.

Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

BJORGEN, J.

[175 Wash.App. 784]¶ 1 Robert Locke appeals his conviction and sentence for one count of making threats against the Governor or her family. He argues that: (1) sufficient evidence does not support that he made a “true threat,” as defined under First Amendment case law, or a “threat” as defined by the jury instructions; (2) the trial court erred in not including the true threat concept in the “to convict” jury instruction and the information does not contain all essential elements because it fails to refer to a “true threat”; (3) the trial court erred in not providing the jury with a Petrich¹ multiple acts unanimity instruction; and (4) the trial court improperly ordered Locke to have a mental health evaluation and to follow any recommended treatment as a condition of his sentence. The State concedes that the trial court improperly imposed the mental health condition. We hold that sufficient evidence supports the finding of a true threat, consistently with the first Amendment, that the jury instructions were proper, and that a Petrich instruction was not necessary. Therefore, we affirm the conviction, but remand for vacation of the improper mental health condition.

FACTS

¶ 2 In the early morning of January 25, 2011, Locke sent two e-mail messages to the Governor through a section of the Governor's web site entitled “Contact Governor Gregoire.” Exh. 3 at 1, 4–5. The web page required the sender's first and last name, e-mail address, physical address, city, state, and zip code as contact information.

¶ 3 In his first e-mail, sent at 6:09 AM, Locke identified himself as “Robb Locke” and provided a phone number; an e-mail address, “robblocke 2004@ yahoo. com”; a zip code, 98334; and a state, Washington. Exh. 4. For his address, Locke entered “1313 Mockingbird Lane,” an address used in the television comedy “The Munsters.” Exh. 4; Report of Proceedings (RP) at 186. For his city, he entered “Gregoiremustdie.” Exh. 4. His message stated,

I hope you have the opportunity to see one of your family members raped and murdered by a sexual predator. Thank you for putting this state in the toilet. Do us a favor and pull the lever to send us down before you leave Olympia.

Exh. 4.

¶ 4 At 6:11 AM, Locke used the web page to send a second e-mail, providing the same contact information. His second message stated, “You fucking CUNT!! You should be burned at the stake like any heretic.” Exh. 5.

[175 Wash.App. 786]¶ 5 Finally, at 6:13 am, Locke accessed another section of the Governor's web site titled, “Invite Governor Gregoire to an Event.” Exh. 1. Through a form on this web page, Locke requested an event, again identifying himself as “Robb Locke,” noted that he lived in Washington state, and identified his organization as “Gregoire Must DIe [sic].” Exh. 2. He requested that the event be held at the Governor's mansion and stated the event's subject would be “Gregoire's public execution.” Exh. 2. He wrote that the Governor's role during the event-would be “Honoree,” the event would last 15 minutes, the media would be invited, and the audience's size would be greater than 150. Exh. 2.

¶ 6 Barbara Winkler, the Governor's executive scheduler, discovered Locke's event request when she arrived at work the morning of January 25. The request alarmed her, and she considered it as serious because it occurred shortly after a recent shooting of an elected official in Arizona.² She forwarded the event request to a member of the Executive Protection Unit (EPU) of the Washington State Patrol.³

¶ 7 After speaking with Winkler, Rebecca Larsen, the Governor's executive receptionist, searched the computer system for the name Locke provided in the event request and discovered the two earlier e-mails from him. Because Larsen was “alarm[ed]” by the e-mails, she printed them and gave them to the EPU. RP at 126, 128.

¶ 8 Washington State Patrol Sergeant Carlos Rodriguez of the EPU reviewed the e-mails and event request. After considering their content and the Arizona shootings, he interpreted them as “a serious threat to do harm to the governor.” RP at 171, 178. Rodriguez reviewed the communicationswith Detective James Kirk of the state patrol, who dialed the telephone number provided with the e-mail. A male voice answered, and Kirk asked if he was speaking with Locke. Locke answered yes, and Kirk identified himself and said he wanted to discuss the e-mails. Locke replied, “Yeah,” and either hung up or lost cellular service. RP at 204. When Kirk called back, the call went to voice mail.

¶ 9 Kirk and Trooper Albert Havenner went to an address believed to be Locke's residence and saw someone matching Locke's description walking down the street. Havenner contacted the individual. Locke identified himself and replied, “Yeah, I know why you're here.... I figured you guys would be contacting me.” RP at 197. Kirk then identified himself and said he had spoken with Locke on the telephone earlier that morning. Locke replied, “[Y]eah, I want you to know ... I didn't hang up on you, I have poor cell service.” RP at 207. Kirk then transported Locke to a state patrol office.

¶ 10 At the office, Locke acknowledged that he sent the e-mails and an event request from a computer in his residence. He stated that he did this because, while Governor Gregoire was the attorney general, he had filed a complaint with that office about an employer depriving him of his last two paychecks, and the attorney general's office failed to follow up. In October 2010, Locke became unable to work because of a back condition, and the Department of Social and Health Services twice reduced benefits he was receiving. When Locke awoke the morning of January 25, 2011, he was angry over those circumstances and having to walk three miles to physical therapy while in pain. He described his communications to the Governor as “giv[ing] her a piece of [his] mind,” but he did not recall making any direct threats to her safety and had no intention of carrying out any threats. Ex. 6 at 7, 10. He “profusely apologize[d] for [his] temper” and said that “it was ... the worst judgment” to have sent the communications, but he “needed the outlet at the moment ... [a]nd, it was there.” Ex. 6 at 15.

[175 Wash.App. 788]¶ 11 The State charged Locke with one count of threats against the Governor or her family. A jury convicted him as charged. The trial court sentenced him to 12 months' confinement and ordered a mental health evaluation. Locke appeals.

ANALYSIS

I. Sufficiency of the Evidence

¶ 12 Locke argues that sufficient evidence does not support his making a “true threat” against the Governor under First Amendment case law or his making a “threat” as defined by the jury instructions. We disagree.

¶ 13 Sufficient evidence supports a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. State v. Hosier, 157 Wash.2d 1, 8, 133 P.3d 936 (2006). Subject to the rules governing First Amendment analysis set out below, we draw all reasonable inferences ⁴ from the evidence in the State's favor and interpret them most strongly against the defendant. Hosier, 157 Wash.2d at 8, 133 P.3d 936. In the sufficiency context, we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150 Wash.2d 774, 781, 83 P.3d 410 (2004). We may infer specific criminal intent of the accused from conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150 Wash.2d at 781, 83 P.3d 410.Finally, we defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874–75, 83 P.3d 970,abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

A. True Threat

¶ 14 Locke was convicted under RCW 9A.36.090(1), which provides:

Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the governor of the state or his or her immediate family ... or knowingly and willfully otherwise makes any such threat against the governor ... shall be guilty of a class C felony.

¶ 15 The First Amendment, applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law ... abridging the freedom of speech.” Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The First Amendment, though, does not extend to speech held to be unprotected, one category of which comprises “true threats.” State v. Allen, 176 Wash.2d 611, 626, 294 P.3d 679 (2013).

¶ 16 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 person.” Allen, 176 Wash.2d at 626, 294 P.3d 679 (internal quotation marks omitted) (quoting State v. Kilburn, 151 Wash.2d 36, 43, 84 P.3d 1215 (2004)). To avoid violating the First Amendment, our Supreme Court has held that it will “interpret statutes criminalizing threatening language as proscribing only unprotected true threats.” Allen, 176 Wash.2d at 626, 294 P.3d 679. Consequently, we construe RCW 9A.36.090(1) as prohibiting only true threats.

[175 Wash.App. 790] ¶ 17 A true threat is a serious threat, not one said in jest, idle talk, or...