State v. Strong

• Decision Date: 15 March 2012
• Docket Number: No. 29580–0–III.,29580–0–III.
• Citation: 167 Wash.App. 206,272 P.3d 281
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Stephanie Anne STRONG, Appellant.

167 Wash.App. 206

272 P.3d 281

STATE of Washington, Respondent,

v.Stephanie Anne STRONG, Appellant.

No. 29580–0–III.

Court of Appeals of Washington, Division 3.

March 15, 2012.

David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

SIDDOWAY, J.

[167 Wash.App. 208] ¶ 1 Stephanie Strong appeals her conviction of second degree extortion. She argues that the conduct prosecuted in her case—demanding payment from a public servant in exchange for silence about the public servant's wrongdoing—is no different from accepting payment to settle and hold in confidence embarrassing facts underlying a threatened lawsuit. She insists that the First Amendment protects the party demanding payment in either case. We disagree and affirm her conviction.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Stephanie Strong's indictment and arrest for federal bank fraud in 2008 brought her into contact with Velven York, a corrections officer at the Spokane County Jail. She was housed on the floor to which Mr. York was assigned for many months and the two became friendly. After Ms. Strong was convicted and was transferred to a federal facility to serve her sentence, Mr. York maintained contact with her family and eventually sent a letter to Ms. Strong in prison. When Ms. Strong returned to Spokane to complete her sentence in a federal work-release facility, Mr. York renewed contact, texting or speaking to her frequently, driving her to counseling appointments, and buying her dinner. He paid off several of Ms. Strong's fines and other expenses, which totaled more than $2,000. Although both testified that their relationship never became romantic, they both knew that Mr. York's conduct violated county policy, which strictly forbade corrections officers from fraternizing with current or former inmates.

¶ 3 On June 27, 2010, a Sunday evening, Mr. York received a call on his cell phone from a male caller who stated, “ ‘Hey, I know you're having girl troubles at work.’ ” 2 Report of Proceedings (RP) (Nov. 16, 2010) at 175. The caller went on to say he was aware Mr. York was giving rides to an inmate in a federal halfway house and “ ‘here's what I want. I want $5000,’ ” and hung up. Id. at 176. Mr. York called Ms. Strong and told her about the call.

¶ 4 Shortly thereafter, Mr. York received a second call from the same male caller. This time, the caller demanded that Mr. York bring $5,000 cash to Dick's Hamburgers, a Spokane drive-in restaurant, at 3:45 the next afternoon. The caller said that Mr. York should buy a particular type of hamburger (presumably for its recognizable bag), eat it, put the cash in the bag, and then leave the bag by a designated trash can. Mr. York again called Ms. Strong and told her about the second call. Mr. York and Ms. Strong spoke by phone several times that evening about the threat and what he should do. Ms. Strong counseled Mr. York that he should pay the money.

¶ 5 Instead, Mr. York decided the next morning to notify his supervisors at the jail, who contacted police. Eight to ten officers set up surveillance at the appointed time and watched as Mr. York made a stop at a bank to feign withdrawing the $5,000, traveled to the drive-in restaurant, bought the hamburger, returned to his car to eat it, placed an empty envelope into the bag, and then placed the bag near the designated garbage can. After Mr. York left the parking lot, officers saw Douglas Mobley walk to the trash can and pick up the bag. Officers immediately arrested Mr. Mobley, who turned out to be Ms. Strong's boyfriend. They also detained Ms. Strong, who they had seen arrive at the restaurant with Mr. Mobley and then conceal herself from view behind bushes at a neighboring building.

¶ 6 Mr. York resigned his position with the county to avoid being fired for the violation of policy.

¶ 7 Ms. Strong was charged with second degree extortion as an accomplice. She testified at trial that in her last conversation with Mr. York about the extortion threat he indicated he did not intend to comply with the caller's demands. She claimed she and Mr, Mobley traveled to Dick's at the appointed drop time out of curiosity, never expecting Mr. York to be there. She testified she had no involvement in the extortion and never saw Mr. Mobley pick up the bag. The jury did not believe her. She was convicted and sentenced to 55 months' confinement.

¶ 8 She appeals, arguing that Mr. Mobley's speech, threatening to disclose only truthful information and not a “true threat” within the meaning of First Amendment jurisprudence, is constitutionally protected. She argues that she cannot be convicted as an accomplice to something that is not a crime.

ANALYSIS

¶ 9 The State must prove each element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Ms. Strong argues that the State presented insufficient evidence that the threat conveyed to Mr. York by Mr. Mobley was unprotected speech under the First Amendment.

¶ 10 Whether the crime of extortion in the second degree requires proof of a “true threat” within the meaning adopted by our Supreme Court in State v. Williams, 144 Wash.2d 197, 26 P.3d 890 (2001) is a question of law that we review de novo.

¶ 11 If Ms. Strong's conviction may have been based on protected speech, we conduct an independent examination of the entire record “ ‘to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure [that] protected expression will not be inhibited.’ ” State v. Kilburn, 151 Wash.2d 36, 50, 84 P.3d 1215 (2004) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

I

¶ 12 As a threshold matter, the State argues that Ms. Strong was charged as an accomplice and the speech for which she claims protection—the extortionate threat—was not her own. It argues that since her speech was not at issue, there is no First Amendment issue she can raise.

¶ 13 As framed by Ms. Strong, however, the issue is whether she can be convicted as an accomplice if no underlying crime occurred. An accessory may be convicted of the underlying offense even though he or she is the only one charged, if there is proof the crime was committed. State v. Mora, 110 Wash.App. 850, 859, 43 P.3d 38, review denied, 147 Wash.2d 1021, 60 P.3d 92 (2002); State v. Dault, 25 Wash.App. 568, 573, 608 P.2d 270, review denied, 93 Wash.2d 1030, 1980 WL 153345 (1980). However, “[e]ven though the accessory may be tried and convicted as principal, either before or after the principal actor, he may not be convicted in the absence of proof that the one to whom he is charged as accessory actually committed the crime.” State v. Nikolich, 137 Wash. 62, 66–67, 241 P. 664 (1925); State v. Taplin, 9 Wash.App. 545, 547, 513 P.2d 549 (1973). We agree with Ms. Strong that if Mr. Mobley's conduct was no crime, because protected by the First Amendment, then she cannot be convicted as an accessory.

II

¶ 14 “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) (alteration in original). A state criminal law “may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ ” United States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)).

¶ 15 Ms. Strong argues that RCW 9A.56.130, defining the crime of extortion in the second degree, is constitutionally overbroad in criminalizing threats that enjoy First Amendment protection. But she does not ask us to invalidate the statute on that basis; she asks, instead, that we construe it to require proof of a true threat, which she argues is essential to preserve its constitutionality. Ms. Strong argues that a true threat was not established by the State's evidence in this case.

¶ 16 A limiting construction of a State's definition of a crime is sometimes required by the canon of constitutional avoidance, an interpretive tool that the United States Supreme Court has counseled so that “ambiguous statutory language be construed to avoid serious constitutional doubts.” Fed. Commc's Comm'n v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009). But adopting a limiting construction is only appropriate if the statute is readily susceptible to the limiting construction; rewriting a law to conform it to constitutional requirements would constitute a serious invasion of the legislative domain. Stevens, 130 S.Ct. at 1592 (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 479 n. 26, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995)).

¶ 17 The United States Supreme Court's recent First Amendment jurisprudence provides that “ ‘[t]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.’ ” Id. at 1587 (alteration in original) (quoting United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). The second is to examine whether the statute as construed criminalizes a substantial amount of protected expressive activity, Williams, 553 U.S. at 297, 128 S.Ct. 1830. We conduct the two steps of the analysis in turn.

A

¶ 18 Washington defines “extortion” as knowingly to obtain or attempt to...